[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page 1]]
45
Parts 200 to 499
Revised as of October 1, 2009
Public Welfare
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2009
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 45:
SUBTITLE B--Regulations Relating to Public Welfare
Chapter I [Reserved]
Chapter II--Office of Family Assistance (Assistance
Programs), Administration for Children and Families,
Department of Health and Human Services 5
Chapter III--Office of Child Support Enforcement
(Child Support Enforcement Program), Administration
for Children and Families, Department of Health and
Human Services 219
Chapter IV--Office of Refugee Resettlement,
Administration for Children and Families, Department
of Health and Human Services 349
Finding Aids:
Table of CFR Titles and Chapters........................ 403
Alphabetical List of Agencies Appearing in the CFR...... 423
List of CFR Sections Affected........................... 433
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 45 CFR 201.0 refers
to title 45, part 201,
section 0.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
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The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2009.
[[Page ix]]
THIS TITLE
Title 45--Public Welfare is composed of four volumes. The parts in
these volumes are arranged in the following order: Parts 1-199, 200-499,
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current
regulations issued under subtitle A--Department of Health and Human
Services. Volume two (parts 200-499) contains all current regulations
issued under subtitle B--Regulations Relating to Public Welfare, chapter
II--Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services,
chapter III--Office of Child Support Enforcement (Child Support
Enforcement Program), Administration for Children and Families,
Department of Health and Human Services, and chapter IV--Office of
Refugee Resettlement, Administration for Children and Families,
Department of Health and Human Services. Volume three (parts 500-1199)
contains all current regulations issued under chapter V--Foreign Claims
Settlement Commission of the United States, Department of Justice,
chapter VI--National Science Foundation, chapter VII--Commission on
Civil Rights, chapter X--Office of Community Services, Administration
for Children and Families, Department of Health and Human Services, and
chapter XI--National Foundation on the Arts and the Humanities. Volume
four (part 1200 to end) contains all current regulations issued under
chapter XII--Corporation for National and Community Service, chapter
XIII--Office of Human Development Services, Department of Health and
Human Services, chapter XVI--Legal Services Corporation, chapter XVII--
National Commission on Libraries and Information Science, chapter
XVIII--Harry S Truman Scholarship Foundation, chapter XXI--Commission of
Fine Arts, chapter XXIII--Artic Research Commission, chapter XXIV--James
Madison Memorial Fellowship Foundation, and chapter XXV--Corporation for
National and Community Service. The contents of these volumes represent
all of the current regulations codified under this title of the CFR as
of October 1, 2009.009.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 45--PUBLIC WELFARE
(This book contains parts 200 to 499)
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SUBTITLE B--Regulations Relating to Public Welfare
Part
chapter i [Reserved]
chapter ii--Office of Family Assistance (Assistance
Programs), Administration for Children and Families,
Department of Health and Human Services................... 201
chapter iii--Office of Child Support Enforcement (Child
Support Enforcement Program), Administration for Children
and Families, Department of Health and Human Services..... 301
chapter iv--Office of Refugee Resettlement, Administration
for Children and Families, Department of Health and Human
Services.................................................. 400
[[Page 3]]
Subtitle B--Regulations Relating to Public Welfare
CHAPTER I [RESERVED]
[[Page 5]]
CHAPTER II--OFFICE OF FAMILY ASSISTANCE (ASSISTANCE PROGRAMS),
ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF HEALTH AND HUMAN
SERVICES
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Editorial Note: Nomenclature changes to chapter II appear at 66 FR
39452, July 31, 2001.
Part Page
200
[Reserved]
201 Grants to States for public assistance
programs................................ 7
204 General Administration--State plans and
grant appeals........................... 18
205 General administration--public assistance
programs................................ 19
206 Application, determination of eligibility
and furnishing assistance--public
assistance programs..................... 39
211 Care and treatment of mentally ill nationals
of the United States, returned from
foreign countries....................... 42
212 Assistance for United States citizens
returned from foreign countries......... 47
213 Practice and procedure for hearings to
States on conformity of public
assistance plans to Federal requirements 50
225 Training and use of subprofessionals and
volunteers.............................. 55
233 Coverage and conditions of eligibility in
financial assistance programs........... 56
234 Financial assistance to individuals......... 103
235 Administration of financial assistance
programs................................ 111
237 Fiscal administration of financial
assistance programs..................... 116
260 General temporary assistance for needy
families (TANF) provisions.............. 117
261 Ensuring that recipients work............... 129
262 Accountability provisions--general.......... 147
263 Expenditure of State and Federal TANF funds. 151
264 Other accountability provisions............. 157
[[Page 6]]
265 Data collection and reporting requirements.. 164
270 High performance bonus awards............... 170
282
[Reserved]
283 Implementation of section 403(A)(2) of the
Social Security Act bonus to reward
decrease in illegitimacy ratio.......... 177
284 Methodology for determining whether an
increase in a State or territory's child
poverty rate is the result of the TANF
Program................................. 181
285
[Reserved]
286 Tribal TANF provisions...................... 185
287 The Native Employment Works (NEW) Program... 210
288-299
[Reserved]
[[Page 7]]
PART 200 [RESERVED]
PART 201_GRANTS TO STATES FOR PUBLIC ASSISTANCE PROGRAMS--Table of Contents
Sec.
201.0 Scope and applicability.
201.1 General definitions.
Subpart A_Approval of State Plans and Certification of Grants
201.2 General.
201.3 Approval of State plans and amendments.
201.4 Administrative review of certain administrative decisions.
201.5 Grants.
201.6 Withholding of payment; reduction of Federal financial
participation in the costs of social services and training.
201.7 Judicial review.
Subpart B_Review and Audits
201.10 Review of State and local administration.
201.11 Personnel merit system review.
201.12 Public assistance audits.
201.13 Action on audit and review findings.
201.14 Reconsideration under section 1116(d) of the Act.
201.15 Deferral of claims for Federal financial participation.
201.66 Repayment of Federal funds by installments.
201.67 Treatment of uncashed or cancelled checks.
201.70 Treatment of replacement checks.
Authority: 42 U.S.C. 303, 603, 1203, 1301, 1302, 1316, 1353 and 1383
(note).
Source: 35 FR 12180, July 29, 1970, unless otherwise noted.
Sec. 201.0 Scope and applicability.
Titles I, X, XIV and XVI (as in effect without regard to section 301
of the Social Security Amendments of 1972) shall continue to apply to
Puerto Rico, the Virgin Islands, and Guam. The term State as used in
such titles means Puerto Rico, the Virgin Islands, and Guam.
[39 FR 8326, Mar. 5, 1974]
Sec. 201.1 General definitions.
When used in this chapter, unless the context otherwise indicates:
(a) Act means the Social Security Act, and titles referred to are
titles of that Act;
(b) Department means the Department of Health and Human Services;
(c) Administrator means the Administrator, Family Support
Administration;
(d) Secretary means the Secretary of Health and Human Services;
(e) Administration means the Family Support Administration;
(f) Regional Administrator means the Regional Administrator of the
Family Support Administration;
(g) State means the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa. The term ``State'' with respect to American Samoa applies to the
programs set forth in title IV-A and IV-F of the Act;
(h) State agency means the State agency administering or supervising
the administration of the State plan or plans under title I, IV-A, IV-F,
X, or XVI (AABD) of the Act;
(i) The terms regional office and central office refer to the
regional offices and the central office of the Family Support
Administration, respectively.
[35 FR 12180, July 29, 1970, as amended at 39 FR 34543, Sept. 26, 1974;
53 FR 36578, Sept. 21, 1988; 57 FR 30425, July 9, 1992]
Subpart A_Approval of State Plans and Certification of Grants
Sec. 201.2 General.
The State plan is a comprehensive statement submitted by the State
agency describing the nature and scope of its program and giving
assurance that it will be administered in conformity with the specific
requirements stipulated in the pertinent title of the Act, the
regulations in subtitle A and this chapter of this title, and other
applicable official issuances of the Department. The State plan contains
all information necessary for the Administration to determine whether
the plan can be approved, as a basis for Federal financial participation
in the State program.
[35 FR 12180, July 29, 1970, as amended at 53 FR 36578, Sept. 21, 1988]
[[Page 8]]
Sec. 201.3 Approval of State plans and amendments.
The State plan consists of written documents furnished by the State
to cover each of its programs under the Act: Old-age assistance (title
I); aid and services to needy families with children (part A of title
IV); aid to the blind (title X); aid to the permanently and totally
disabled (title XIV); or aid to the aged, blind or disabled (title XVI).
The State may submit the common material on more than one program as an
integrated plan. However, it must identify the provisions pertinent to
each title since a separate plan must be approved for each public
assistance title. A plan submitted under title XVI encompasses, under a
single plan, the programs otherwise covered by three separate plans
under titles I, X, and XIV. After approval of the original plan by the
Administration, all relevant changes, required by new statutes, rules,
regulations, interpretations, and court decisions, are required to be
submitted currently so that the Administration may determine whether the
plan continues to meet Federal requirements and policies.
(a) Submittal. State plans and revisions of the plans are submitted
first to the State governor or his designee for review in accordance
with Sec. 204.1 of this chapter, and then to the regional office. The
States are encouraged to obtain consultation of the regional staff when
a plan is in process of preparation or revision.
(b) Review. Staff in the regional offices are responsible for review
of State plans and amendments. They also initiate discussion with the
State agency on clarification of significant aspects of the plan which
come to their attention in the course of this review. State plan
material on which the regional staff has questions concerning the
application of Federal policy is referred with recommendations as
required to the central office for technical assistance. Comments and
suggestions, including those of consultants in specified areas, may be
prepared by the central office for use by the regional staff in
negotiations with the State agency.
(c) Action. The Regional Administrator, exercised delegated
authority to take affirmative action on State plans and amendments
thereto on the basis of policy statements or precedents previously
approved by the Administrator. The Administrator retains authority for
determining that proposed plan material is not approvable, or that a
previously approved plan no longer meets the requirements for approval,
except that a final determination of disapproval may not be made without
prior consultation and discussion by the Administrator with the
Secretary. The Regional Administrator, or the Administrator formally
notifies the State agency of the actions taken on State plans or
revisions.
(d) Basis for approval. Determinations as to whether State plans
(including plan amendments and administrative practice under the plans)
originally meet or continue to meet, the requirements for approval are
based on relevant Federal statutes and regulations. Guidelines are
furnished to assist in the interpretation of the regulations.
(e) Prompt approval of State plans. Pursuant to section 1116 of the
Act, the determination as to whether a State plan submitted for approval
conforms to the requirements for approval under the Act and regulations
issued pursuant thereto shall be made promptly and not later than the
90th day following the date on which the plan submittal is received in
the regional office, unless the Regional Administrator, has secured from
the State agency a written agreement to extend that period.
(f) Prompt approval of plan amendments. Any amendment of an approved
State plan may, at the option of the State, be considered as a
submission of a new State plan. If the State requests that such
amendment be so considered the determination as to its conformity with
the requirements for approval shall be made promptly and not later than
the 90th day following the date on which such a request is received in
the regional office with respect to an amendment that has been received
in such office, unless the Regional Administrator, has secured from the
State agency a written agreement to extend that period. In absence of
request by a State that an amendment of an approved State plan shall be
considered as a submission of a new State plan,
[[Page 9]]
the procedures under Sec. 201.6 (a) and (b) shall be applicable.
(g) Effective date. The effective date of a new plan may not be
earlier than the first day of the calendar quarter in which an
approvable plan is submitted, and with respect to expenditures for
assistance under such plan, may not be earlier than the first day on
which the plan is in operation on a statewide basis. The same applies
with respect to plan amendments that provide additional assistance or
services to persons eligible under the approved plan or that make new
groups eligible for assistance or services provided under the approved
plan. For other plan amendments the effective date shall be as specified
in other sections of this chapter.
[35 FR 12180, July 29, 1970, as amended at 39 FR 34542, Sept. 26, 1974;
42 FR 43977, Sept. 1, 1977; 53 FR 36579, Sept. 21, 1988]
Sec. 201.4 Administrative review of certain administrative decisions.
Pursuant to section 1116 of the Act, any State dissatisfied with a
determination of the Administrator pursuant to Sec. 201.3 (e) or (f)
with respect to any plan or amendment may, within 60 days after the date
of receipt of notification of such determination, file a petition with
the Regional Administrator, asking the Administrator for reconsideration
of the issue of whether such plan or amendment conforms to the
requirements for approval under the Act and pertinent Federal
requirements. Within 30 days after receipt of such a petition, the
Administrator shall notify the State of the time and place at which the
hearing for the purpose of reconsidering such issue will be held. Such
hearing shall be held not less than 30 days nor more than 60 days after
the date notice of such hearing is furnished to the State, unless the
Administrator and the State agree in writing on another time. For
hearing procedures, see part 213 of this chapter. A determination
affirming, modifying, or reversing the Administrator's original decision
will be made within 60 days of the conclusion of the hearing. Action
pursuant to an initial determination by the Administrator described in
such Sec. 201.3 (e) or (f) that a plan or amendment is not approvable
shall not be stayed pending the reconsideration, but in the event that
the Administrator subsequently determines that his original decision was
incorrect he shall certify restitution forthwith in a lump sum of any
funds incorrectly withheld or otherwise denied.
[35 FR 12180, July 29, 1970, as amended at 42 FR 43977, Sept. 1, 1977;
53 FR 36579, Sept. 21, 1988]
Sec. 201.5 Grants.
To States with approved plans, grants are made each quarter for
expenditures under the plan for assistance, services, training and
administration. The determination as to the amount of a grant to be made
to a State is based upon documents submitted by the State agency
containing information required under the Act and such other pertinent
facts, including title IV-A the appropriate Federal share of child
support collections made by the State, as may be found necessary.
(a) Form and manner of submittal. (1) Time and place: The estimates
for public assistance grants for each quarterly period must be forwarded
to the regional office 45 days prior to the period of the estimate. They
include a certification of State funds available and a justification
statement in support of the estimates. A statement of quarterly
expenditures and any necessary supporting schedules must be forwarded to
the Department of Health and Human Services, Family Support
Administration, not later than 30 days after the end of the quarter.
(2) Description of forms: ``State Agency Expenditure Projection--
Quarterly Projection by Program'' represents the State agency's estimate
of the total amount and the Federal share of expenditures for
assistance, services, training, and administration to be made during the
quarter for each of the public assistance programs under the Act. From
these estimates the State and Federal shares of the total expenditures
are computed. The State's computed share of total estimated expenditures
is the amount of State and local funds necessary for the quarter. The
Federal share is the basis for the funds to be advanced for the quarter.
The
[[Page 10]]
State agency must also certify, on this form or otherwise, the amount of
State funds (exclusive of any balance of advances received from the
Federal Government) actually on hand and available for expenditure; this
certification must be signed by the executive officer of the State
agency submitting the estimate or a person officially designated by him,
or by a fiscal officer of the State if required by State law or
regulation. (A form ``Certificate of Availability of State Funds for
Assistance and Administration during Quarter'' is available for
submitting this information, but its use is optional.) If the amount of
State funds (or State and local funds if localities participate in the
program), shown as available for expenditures is not sufficient to cover
the State's proportionate share of the amount estimated to be expended,
the certification must contain a statement showing the source from which
the amount of the deficiency is expected to be derived and the time when
this amount is expected to be made available.
(3) The State agency must also submit a quarterly statement of
expenditures for each of the public assistance programs under the Act.
This is an accounting statement of the disposition of the Federal funds
granted for past periods and provides the basis for making the
adjustments necessary when the State's estimate for any prior quarter
was greater or less than the amount the State actually expended in that
quarter. The statement of expenditures also shows the share of the
Federal Government in any recoupment, from whatever source, including
for title IV-A the appropriate share of child support collections made
by the State, of expenditures claimed in a prior period, and also in
expenditures not properly subject to Federal financial participation
which are acknowledged by the State agency, including the share of the
Federal Government for uncashed and cancelled checks as described at 45
CFR 201.67 and replacement checks as described at 45 CFR 201.70 in this
part, or which have been revealed in the course of an audit.
(b) Review. The State's estimates are analyzed by the regional
office staff and are forwarded with recommendations as required to the
central office. The central office reviews the State's estimate, other
relevant information, and any adjustments to be made for prior periods,
and computes the grant.
(c) Grant award. The grant award computation form shows, by program,
the amount of the estimate for the ensuing quarter, and the amounts by
which the estimate is reduced or increased because of over- or under-
estimate for the prior quarter and for other adjustments. This form is
transmitted to the State agency to draw the amount of the grant award,
as needed, to meet the Federal share of disbursements. The draw is
through a commercial bank and the Federal Reserve system against a
continuing letter of credit certified to the Secretary of the Treasury
in favor of the State payee. A copy of the grant award notice is sent to
the State Central Information Reception Agency in accord with section
201 of the Intergovernmental Cooperation Act of 1968.
(d) Letter of credit payment system. The letter of credit system for
payment of advances of Federal funds was established pursuant to
Treasury Department regulations (Circular No. 1075), published in the
Federal Register on July 11, 1967 (32 FR 10201). The HEW ``Instructions
to Recipient Organizations for Use of Letter of Credit'' was transmitted
to all grantees by memorandum from the Assistant Secretary-Comptroller
on January 15, 1968.
(e) General administrative requirements. With the following
exceptions, the provisions of part 74 of this title, establishing
uniform administrative requirements and cost principles, shall apply to
all grants made to States under this part:
45 CFR Part 74
Subpart G--Matching and Cost Sharing.
Subpart I--Financial Reporting Requirements.
[35 FR 12180, July 29, 1970, as amended at 38 FR 26320, Sept. 19, 1973;
46 FR 48003, Sept. 30, 1981; 53 FR 24269, June 28, 1988; 53 FR 36579,
Sept. 21, 1988]
[[Page 11]]
Sec. 201.6 Withholding of payment; reduction of Federal financial participation in the costs of social services and training.
(a) When withheld. Further payments to a State are withheld in whole
or in part if the Administrator, after reasonable notice and opportunity
for hearing to the State agency administering or supervising the
administration of an approved plan, finds:
(1) That the plan no longer complies with the provisions of section
2, 402, 1002, 1402, or 1602 of the Act; or
(2) That in the administration of the plan there is failure to
comply substantially with any such provision.
A question of noncompliance of a State plan may arise from an
unapprovable change in the approved State plan, the failure of the State
to change its approved plan to conform to a new Federal requirement for
approval of State plans, or the failure of the State in practice to
comply with a Federal requirement, whether or not its State plan has
been amended to conform to such requirement.
(b) When the rate of Federal financial participation is reduced.
Under title I, X, XIV, or XVI (AABD) of the Act, Federal financial
participation in the costs of social services and training approved at
the rate of 75 per centum is reduced to 50 per centum if the
Administrator, after reasonable notice and opportunity for a hearing to
the State agency, finds:
(1) That the plan provision under such title for prescribed services
no longer complies with the Federal requirements with respect to such
prescribed services; or
(2) That in the administration of the plan there is a failure to
comply substantially with such plan provision.
(c) Information discussions. Hearings with respect to matters under
paragraph (a) or (b) of this section are generally not called, however,
until after reasonable effort has been made by the Administration to
resolve the questions involved by conference and discussion with State
officials. Formal notification of the date and place of hearing does not
foreclose further negotiations with State officials.
(d) Conduct of hearings. For hearing procedures, see part 213 of
this chapter.
(e) Notification of withholding. If the Administrator makes a
finding of noncompliance with respect to a matter under paragraph (a) of
this section, the State agency is notified that further payments will
not be made to the State (or, in his discretion, that payments will be
limited to categories under or parts of the plan not affected by such
failure), until the Administrator is satisfied that there will no longer
be any such failure to comply. Until he is so satisfied, no further
payments will be made to the State (or will be limited to categories
under or parts of the plan not affected by such failure).
(f) Notification of reduction in the rate of Federal financial
participation. If the Administrator makes a finding of noncompliance
with respect to a matter under paragraph (b) of this section, the State
agency is notified that further payments will be made to the State at
the rate of 50 per centum of the costs of services and training, until
the Administrator is satisfied that there will no longer be any failure
to comply.
[35 FR 12180, July 29, 1970, as amended at 39 FR 34542, Sept. 26, 1974;
53 FR 36579, Sept. 21, 1988]
Sec. 201.7 Judicial review.
Any State dissatisfied with a final determination of the Secretary
pursuant to Sec. 201.4 or Sec. 201.6(a) may, within 60 days after it
has been notified of such determination, file with the U.S. Court of
Appeals for the circuit in which such State is located a petition for
review of such determination. After a copy of the petition is
transmitted by the clerk of the court to the Secretary, the Secretary
thereupon shall file in the court the record of proceedings upon which
such determination was based as provided in section 2112 of title 28,
United States Code. The court is bound by the Secretary's findings of
fact, if supported by substantial evidence. The court has jurisdiction
to affirm the Secretary's decision, or set it aside in whole or in part,
or, for good cause, to remand the case for additional evidence. If the
case is remanded, the Secretary may thereupon make new or modified
findings of fact, and may modify his previous determination. The
Secretary shall certify to the court the transcript and record of the
further
[[Page 12]]
proceedings. The judgment of the court is subject to review by the
Supreme Court of the United States upon certiorari or certification as
provided in 28 U.S.C. 1254.
Subpart B_Review and Audits
Sec. 201.10 Review of State and local administration.
(a) In order to provide a basis for determining that State agencies
are adhering to Federal requirements and to the substantive legal and
administrative provisions of their approved plans, the Administration
conducts a review of State and local public assistance administration.
This review includes analysis of procedures and policies of State and
local agencies and examination of case records of individual recipients.
(b) Each State agency is required to carry out a continuing quality
control program primarily covering determination of eligibility in
statistically selected samples of individual cases. The Service conducts
a continuing observation of these State systems.
(c) Adherence to other Federal requirements set forth in the
pertinent titles of the Act and the regulations in this title is
evaluated through review of selected case records and aspects of agency
operations.
[35 FR 12180, July 29, 1970, as amended at 53 FR 36579, Sept. 21, 1988]
Sec. 201.11 Personnel merit system review.
A personnel merit system review is carried out by the Office of
State Merit Systems of the Office of the Assistant Secretary for
Administration of the Department. The purpose of the review is to
evaluate the effectiveness of the State merit system relating to the
public assistance programs and to determine whether there is compliance
with Federal requirements in the administration of the merit system
plan. See part 70 of this title.
Sec. 201.12 Public assistance audits.
(a) Annually, or at such frequencies as are considered necessary and
appropriate, the operations of the State agency are audited by
representatives of the Audit Agency of the Department. Such audits are
made to determine whether the State agency is being operated in a manner
that:
(1) Encourages prudent use of program funds, and
(2) Provides a reasonable degree of assurance that funds are being
properly expended, and for the purposes for which appropriated and
provided for under the related Act and State plan, including State laws
and regulations.
(b) Reports of these audits are released by the Audit Agency
simultaneously to program officials of the Department, and to the
cognizant State officials. These audit reports relate the opinion of the
Audit Agency on the practices reviewed and the allowability of costs
audited at the State agency. Final determinations as to actions required
on all matters reported are made by cognizant officials of the
Department.
Sec. 201.13 Action on audit and review findings.
(a) If the audit results in no exceptions, the State agency is
advised by letter of this result. The general course for the disposition
of proposed exceptions resulting from audits involves the submittal of
details of these exceptions to the State agency which then has an
opportunity to concur in the proposed exceptions or to assemble and
submit additional facts for purposes of clearance. Provision is made for
the State agency to appeal proposed audit exceptions in which it has not
concurred and which have not been deleted on the basis of clearance
material. After consideration of a State agency's appeal by the
Administrator, the Administration advises the State agency of any
expenditures in which the Federal Government may not participate and
requests it to include the amount as adjustments in a subsequent
statement of expenditures. Expenditures in which it is found the Federal
Government may not participate and which are not properly adjusted
through the State's claim will be deducted from subsequent grants made
to the State agency.
(b) If the Federal or State reviews reveal serious problems with
respect to compliance with any Federal requirement, the State agency is
required to
[[Page 13]]
correct its practice so that there will be no recurrence of the problem
in the future.
[35 FR 12180, July 29, 1970, as amended at 53 FR 36579, Sept. 21, 1988]
Sec. 201.14 Reconsideration under section 1116(d) of the Act.
(a) Applicability. This section applies to any disallowance of any
item or class of items for which FFP is claimed under title I, IV, X,
XIV, XVI(AABD), or XX of the Act, with respect to which reconsideration
was requested prior to March 6, 1978, unless the State by filing a
written notice to that effect with the Executive Secretary, Departmental
Grant Appeals Board (with proof of service on the head of the
constituent agency), within 30 days after mailing of the confirmation of
the disallowance by the agency head, elects to have the reconsideration
governed by 45 CFR part 16.
(1) Reduction of the Federal share of assistance payments under
title IV-A, for failure to certify WIN registrants (section 402(e) of
the Act);
(2) Reduction by one per centum of the quarterly amount payable to a
State for all expenditures under title IV-A for failure, in certain
cases, to carry out the provisions of section 402(a)(15) of the Act
which require the offering of and arrangement for the provision of
family planning services (section 402(f) of the Act);
(3)-(5) [Reserved]
(6) Any other decision pursuant to sections 3, 403, 422, 455, 1003,
1403, 1603, or 2003, of the Act.
(b) Notice of disallowance determination. (1) When the Regional
Administrator, determines that a State claim for FFP in expenditures for
a particular item or class of items is not allowable, he shall promptly
issue a disallowance letter to the State.
(2) This disallowance letter shall include where appropriate:
(i) The date or dates on which the State's claim for FFP was made;
(ii) The time period during which the expenditures in question were
made or claimed to have been made;
(iii) The date and amount of any payment or notice of deferral;
(iv) A statement of the amount of FFP claimed, allowed, and
disallowed and the manner in which these amounts were calculated;
(v) Findings of fact on which the disallowance determination is
based or a reference to other documents previously or contemporaneously
furnished to the State (such as a report of a financial review or audit)
which contain the findings of fact on which the disallowance
determination is based;
(vi) Pertinent citations to the law, regulations, guides and
instructions supporting the action taken; and
(vii) Notice of the State's right to request reconsideration of the
disallowance under this section and the time within such request must be
made.
(c) Request for reconsideration. (1) To obtain reconsideration of a
disallowance of an item or class of items for FFP, a State shall, within
30 days of the date of the disallowance letter, request reconsideration
by the Administrator, with copy to the Regional Administrator, and
enclose a copy of the disallowance letter.
(2) The request for reconsideration must be accompanied by a brief
statement of the issues in dispute, including an explanation of the
State's position with respect to each issue.
(d) Reconsideration procedures. (1) The Administrator will promptly
acknowledge receipt of a State's request for reconsideration.
(2) Upon receipt of a copy of the request for reconsideration, the
Regional Administrator, shall, within 30 days of the request, provide to
the Administrator a complete record of all material which he believes to
have a bearing on the reconsideration, including any reports of audit or
review which were the basis for his decision.
(3) The Administrator shall promptly forward to the State a list of
all items currently in the record, including those received from the
Regional Administrator, or with respect to the medical assistance
program under title XIX, Regional Medicaid Director and make available
for examination, inspection and copying any such items not previously
received by the State.
(4) Within 60 days from the date of the Administrator's transmittal
to the State under paragraph (d)(3) of this
[[Page 14]]
section, the State shall submit in writing to the Administrator any new
relevant evidence, documentation, or argument and shall simultaneously
submit a copy thereof to the Regional Administrator, or with respect to
the medical assistance program under title XIX, Regional Medicaid
Director.
(5) The Regional Administrator, or with respect to the medical
assistance program under title XIX, Regional Medicaid Director shall,
within 60 days of submittal by the State, submit to the Administrator
(with a copy to the State) an analysis of the issues relevant to the
disallowance including:
(i) A restatement of the findings on which the disallowance was
based;
(ii) A response to each issue raised by the State with respect to
such findings;
(iii) A response to any other issues raised by the State, providing
additional documentation when necessary; and
(iv) Any additional documentation which he deems relevant.
(6) The State may respond to the material submitted by the Regional
Administrator, or with respect to the medical assistance program under
title XIX, Regional Medicaid Director by submitting to the Administrator
within 15 days any supplemental material the State wishes to have
entered into the record.
(7) At the time of submitting any additional material pursuant to
paragraph (d)(4), the State may obtain, upon request to him, a
conference with the Administrator, during which it may discuss with the
Administrator its position on the issues. The State may, at its own
expense, have such conference transcribed; the transcript shall become
part of the administrative record.
(8) In reconsidering the disallowance, the Administrator may request
any additional information or documents necessary to his decision.
(9) New relevant evidence received into the record by the
Administrator pursuant to paragraph (d)(8) of this section which is not
received from, or previously otherwise made available to, the State
shall promptly be made available to the State for examination,
inspection, and copying and the State will be given appropriate
additional time for comment.
(10) All documents, reports, correspondence, and other materials
considered by the Administrator in reaching his decision shall
constitute the record of the reconsideration proceedings.
(11) After consideration of such record and the laws and regulations
pertinent to the issues in question, the Administrator shall issue a
written decision, based on the administrative record, which summarizes
the facts and cites the regulations or statutes that support the
decision. The decision shall constitute final administrative action on
the matter and shall be promptly mailed to the head of the State agency.
(12) Either the state or the Regional Administrator, or with respect
to the medical assistance program under title XIX, Regional Medicaid
Director may request from the Administrator, for good cause, an
extension of any of the time limits specified in this section.
(13) No section of this regulation shall be interpreted as waiving
the Department's right to assert any provision or exemption in the
Freedom of Information Act.
(e) Implementation of the decision. If the decision requires an
adjustment in the Federal share, either upward or downward, this will be
reflected in subsequent grant awards.
(f) For purposes of this section, the Administrator includes the
Deputy Administrator, except that whichever official conducts the
conference requested pursuant to paragraph (d)(7) of this section will
also issue the final administrative decision pursuant to paragraph
(d)(11) of this section.
Appendix--Reconsideration of Disallowances Under Section 1116 (d) of the
Social Security Act
transfer of functions
Under the authority of Reorganization Plan No. 1 of 1953, and
pursuant to the authorities vested in me as Secretary of Health amd
Human Services, I hereby order that, with respect to reconsiderations of
disallowances imposed under titles I, IV, VI, X, XIV, XVI (AABD), XIX
and XX of the Social Security Act, 42 U.S.C. 301 et seq., 601 et seq.,
801 et seq., 1201 et seq., 1351 et seq., 1381 et seq. (AABD), 1396 et
seq. and 1397 et seq., all references to ``Administrator'' appearing in
45
[[Page 15]]
CFR 201.14 shall be deemed to read ``Chairman, Departmental Grant
Appeals Board'' and all references to ``Deputy Administrator'' appearing
therein shall be deemed to refer to one or more members of the
Departmental Grant Appeals Board, designated by the Chairman to decide a
reconsideration. States which have previously had or requested a
conference pursuant to 45 CFR 201.14(d)(7) will be entitled to a
conference with the Chairman of the Departmental Grant Appeals Board
acting (as provided above) as successor to the Administrator of the
Social and Rehabilitation Service (SRS), or with a member or members of
the Board designated by the Chairman to decide the matter, acting as
successor to the Deputy Administrator of SRS. The Chairman may, at his
option, utilize a Grant Appeals Panel, designated pursuant to 45 CFR
516.4(b), to decide the matter, and may supplement the Sec. 201.14
procedures by utilizing the procedures of 45 CFR part 16 including the
authority provided in 45 CFR 16.51 to waive or modify any procedural
provision upon a determination that no party will be prejudiced and that
the ends of justice will be served.
[40 FR 34592, Aug. 18, 1975; 40 FR 44326, Sept. 26, 1975, as amended at
41 FR 42205, Sept. 27, 1976; 42 FR 43977, Sept. 1, 1977; 42 FR 51583,
Sept. 29, 1977; 43 FR 9266, Mar. 6, 1978; 51 FR 9202, Mar. 18, 1986; 53
FR 36579, Sept. 21, 1988]
Sec. 201.15 Deferral of claims for Federal financial participation.
(a) Scope. Except as otherwise provided, this section applies to all
claims for Federal financial participation submitted by States pursuant
to titles I, IV, X, XIV, XVI (AABD), of the Social Security Act.
(b) Definitions. (1) Deferral Action means the process of suspending
payment with respect to a claim within the scope of paragraph (a) of
this section, pending the receipt and analysis of further information
relating to the allowability of the claim, under the procedures
specified in this section.
(2) Deferred claim means a claim within the scope of paragraph (a)
of this section upon which a deferral action has been taken.
(c) Procedures. (1) A claim or any portion of a claim for
reimbursement for expenditures reported on the Quarterly Statement of
Expenditures shall be deferred only when the Regional Administrator
believes the claim or a specific portion of the claim is of questionable
allowability. The deferral action will be taken within 60 days after
receipt of a Quarterly Statement of Expenditures prepared in accordance
with instructions issued by the Administration.
(2) When deferral action is taken on a claim, the Regional
Administrator or the Administrator will within 15 days send written
notice to the State identifying the type and amount of the claim and the
reason for deferral. In the written notice of the deferral action, the
Regional Administrator or the Administrator will request the State to
make available for inspection all documents and materials which the
Regional office then believes necessary to determine the allowability of
the claim.
(3) Within 60 days of receipt of the notice of deferral action
described in paragraph (c)(2) of this section the State shall make
available to the Regional office, in readily reviewable form, all
requested documents and materials, or when necessary, shall identify
those documents and items of information which are not available. If the
State requires additional time to make the documents and material
available, it shall upon request be given an additional 60 days.
(4) The Regional office will normally initiate the review within 30
days of the date that materials become available for review.
(5) If the Regional Administrator finds that the documents and
materials are not in readily reviewable form or that supplemental
information is required, he will promptly notify the State. The State
will have 15 days from the date of notification to complete the action
requested. If the Regional Commissioner or the Administrator finds that
the documents necessary to determine the allowability of the claim are
not made available within the allowed time limits, or that the documents
are not made available in readily reviewable form, he shall promptly
disallow the claim.
(6) The Regional Administrator or the Administrator will have 90
days after all documentation is available in readily reviewable form to
determine the allowability of the deferred claim. If he is unable to
complete the review within the time period the claim will be paid
subject to a later determination of allowability.
[[Page 16]]
(7) It is the responsibility of the State agency to establish the
allowability of a deferred claim.
(8) The Regional Office or the Administrator will notify the State
in writing of the decision on the allowability of the deferred claim.
(9) If a deferred claim is disallowed, the Regional Administrator or
the Administrator shall advise the State of its right to reconsideration
pursuant to Sec. 201.14.
(10) A decision to pay a deferred claim shall not preclude a
subsequent disallowance as a result of an audit exception or financial
management review. If a subsequent disallowance should occur, the State,
upon request shall be granted reconsideration pursuant to Sec. 201.14.
[41 FR 7104, Feb. 17, 1976, as amended at 42 FR 51583, Sept. 29, 1977;
47 FR 7669, Feb. 22, 1982; 53 FR 36579, Sept. 21, 1988]
Sec. 201.66 Repayment of Federal funds by installments.
(a) Basic Conditions. When a State has been reimbursed Federal funds
for expenditures claimed under titles I, IV-A, X, XIV, XVI (AABD) which
are later determined to be unallowable for Federal financial
participation, the State may make repayment of such Federal funds in
installments provided:
(1) The amount of the repayment exceeds 2\1/2\ percent of the
estimated annual State share for the program in which the unallowable
expenditure occurred as set forth in paragraph (b) of this section; and
(2) The State has notified the Regional Administrator in writing of
its intent to make installment repayments. Such notice must be given
prior to the time repayment of the total was otherwise due.
(b) Criteria governing installment repayments. (1) The number of
quarters over which the repayment of the total unallowable expenditures
will be made will be determined by the percentage the total of such
repayment is of the estimated State share of the annual expenditures for
the specific program against which the recovery is made, as follows:
------------------------------------------------------------------------
Number of
Total repayment amount as percentage of State share of quarters
annual expenditures for the specific program to make
repayment
------------------------------------------------------------------------
2.5 pct. or less............................................ 1
Greater than 2.5, but not greater than 5.................... 2
Greater than 5, but not greater than 7.5.................... 3
Greater than 7.5, but not greater than 10................... 4
Greater than 10, but not greater than 15.................... 5
Greater than 15, but not greater than 20.................... 6
Greater than 20 but not greater than 25..................... 7
Greater than 25, but not greater than 30.................... 8
Greater than 30, but not greater than 47.5.................. 9
Greater than 47.5, but not greater than 65.................. 10
Greater than 65, but not greater than 82.5.................. 11
Greater than 82.5, but not greater than 100................. 12
------------------------------------------------------------------------
The quarterly repayment amounts for each of the quarters in the
repayment schedule shall not be less than the following percentages of
the estimated State share of the annual expenditures for the program
against which the recovery is made.
------------------------------------------------------------------------
Repayment
installment
may not be
For each of the following quarters less than
these
percentages
------------------------------------------------------------------------
1 to 4..................................................... 2.5
5 to 8..................................................... 5.0
9 to 12.................................................... 17.5
------------------------------------------------------------------------
If the State chooses to repay amounts representing higher percentages
during the early quarters, any corresponding reduction in required
minimum percentages would be applied first to the last scheduled
payment, then to the next to the last payment, and so forth as
necessary.
(2) The latest State Agency Statement of Financial Plan for AFDC
submitted by the State shall be used to estimate the State's share of
annual expenditures for the specific program in which the unallowable
expenditures occurred. That estimated share shall be the sum of the
State's share of the estimates (as shown on the latest State Agency
Statement of Financial Plan for AFDC) for four quarters, beginning with
the quarter in which the first installment is to be paid.
(3) In the case of a program terminated by law or by the State, the
actual State share--rather than the estimate--shall be used for
determining whether the amount of the repayment exceeds 2\1/2\% of the
annual State share for the program. The annual State
[[Page 17]]
share in these cases will be determined using payments computable for
Federal funding as reported for the program by the State on its
Quarterly Statement of Expenditures reports submitted for the last four
quarters preceding the date on which the program was terminated.
(4) Repayment shall be accomplished through adjustment in the
quarterly grants over the period covered by the repayment schedule.
(5) The amount of the repayment for purpose of paragraphs (a) and
(b) of this section may not include any amount previously approved for
installment repayment.
(6) The repayment schedule may be extended beyond 12 quarterly
installments if the total repayment amount exceeds 100% of the estimated
State share of annual expenditures. In these circumstances, the criteria
in paragraphs (b) (1) and (2) or (3) of this section, as appropriate,
shall be followed for repayment of the amount equal to 100% of the
annual State share. The remaining amount of the repayment shall be in
quarterly amounts not less than those for the 9th through 12th quarters.
(7) The amount of a retroactive claim to be paid a State will be
offset against any amounts to be, or already being, repaid by the State
in installments, under the same title of the Social Security Act. Under
this provision the State may choose to:
(i) Suspend payments until the retroactive claim due the State has,
in fact, been offset; or
(ii) Continue payments until the reduced amount of its debt
(remaining after the offset), has been paid in full. This second option
would result in a shorter payment period. A retroactive claim for the
purpose of this regulation is a claim applicable to any period ending 12
months or more prior to the beginning of the quarter in which the
payment is to be made by the Administration.
[42 FR 28884, June 6, 1977, as amended at 47 FR 7669, Feb. 22, 1982; 52
FR 273, Jan. 5, 1987; 53 FR 36579, Sept. 21, 1988]
Sec. 201.67 Treatment of uncashed or cancelled checks.
(a) Purpose. This section provides the rules to ensure that States
refund the Federal portion of uncashed or cancelled (voided) checks
under titles I, IV-A, X, XIV, and XVI (AABD).
(b) Definitions. As used in this section--Check means a check or
warrant that the State or local agency uses to make a payment.
Cancelled (voided) check means a check issued by the State agency or
local agency which prior to its being cashed is cancelled (voided) by
State or local agency action, thus preventing disbursement of funds.
Uncashed check means a check issued by the State agency or local
agency which has not been cashed by the payee.
(c) Refund of Federal financial participation (FFP) for uncashed
checks--(1) General provisions. If a check remains uncashed beyond a
period of 180 days from the date it was issued, i.e., the date of the
check, it will no longer be regarded as an amount expended because no
funds have actually been disbursed. If the State agency has claimed and
received FFP for the amount of the uncashed check, it must refund the
amount of FFP received.
(2) Report of refund. At the end of each calendar quarter, the State
agency must identify those checks which remain uncashed beyond a period
of 180 days after issuance. The State agency must report on the
Quarterly Statement of Expenditures for that quarter all FFP that it
received for uncashed checks. Once reported on the Quarterly Statement
of Expenditures for a quarter, an uncashed check is not to be reported
on a subsequent Quarterly Statement of Expenditures. If an uncashed
check is cashed after the refund is made, the State agency may submit a
new claim for FFP.
(d) Refund of FFP for cancelled (voided) checks--(1) General
provisions. If the State agency has claimed and received FFP for the
amount of a cancelled (voided) check, it must refund the amount of FFP
received.
(2) Report of refund. At the end of each calendar quarter, the State
agency must identify those checks which were cancelled (voided). The
State
[[Page 18]]
agency must report on the Quarterly Statement of Expenditures for that
quarter all FFP received by the State agency for these checks. Once
reported on the Quarterly Statement of Expenditures for a quarter, a
cancelled (voided) check is not to be reported on a subsequent Quarterly
Statement of Expenditures.
[50 FR 37661, Sept. 17, 1985]
Sec. 201.70 Treatment of replacement checks.
(a) Purpose. This section provides the rules to ensure States do not
claim Federal financial participation (FFP) for replacement checks under
titles I, VI-A, X, XIV, XVI (AABD) except under the circumstances
specified in paragraph (c) of this section.
(b) Definitions. As used in this section--
Check means a check or warrant that the State or local agency uses
to make a payment.
Replacement check means a check issued by the State or local agency
to replace an earlier check.
(c) Claiming of FFP for replacement checks. The State agency may not
claim FFP for the amount of a replacement check unless:
(1) It makes no claim for FFP for the earlier check;
(2) The earlier check has been cancelled (voided) and FFP refunded,
where claimed, pursuant to 45 CFR 201.67(d); or
(3) The earlier check has been cashed and FFP has been refunded.
The State agency shall report the amount of the refund of FFP for
the earlier check on the Quarterly Statement of Expenditures for the
quarter no later than the quarter in which the replacement check is
issued.
[53 FR 24269, June 28, 1988]
PART 204_GENERAL ADMINISTRATION_STATE PLANS AND GRANT APPEALS--Table of Contents
Sec.
204.1 Submittal of State plans for Governor's review.
204.2 State plans--format.
204.3 Responsibilities of the State.
204.4 Grant appeals.
Authority: 42 U.S.C. 602(a)(44) and 1302 and sections 1, 5, 6, and 7
of Reorganization Plan No. 1 of 1953, 67 Stat. 631.
Sec. 204.1 Submittal of State plans for Governor's review.
A State plan under title I, IV-A, IV-B, X, XIV, XVI(AABD) of the
Social Security Act, section 101 of the Rehabilitation Act of 1973, or
title I of the Mental Retardation Facilities and Community Mental Health
Centers Construction Act, must be submitted to the State Governor for
his review and comments, and the State plan must provide that the
Governor will be given opportunity to review State plan amendments and
long-range program planning projections or other periodic reports
thereon. This requirement does not apply to periodic statistical or
budget and other fiscal reports. Under this requirement, the Office of
the Governor will be afforded a specified period in which to review the
material. Any comments made will be transmitted to the Family Support
Administration with the documents.
(Sec. 1102, 49 Stat. 647 (42 U.S.C. 1302))
[39 FR 34542, Sept. 26, 1974, as amended at 53 FR 36579, Sept. 21, 1988]
Sec. 204.2 State plans--format.
State plans for Federally-assisted programs for which the Family
Support Administration has responsibility must be submitted to the
Administration in the format and containing the information prescribed
by the Administration, and within time limits set in implementing
instructions issued by the Administration. Such time limits will be
adequate for proper preparation of plans and submittal in accordance
with the requirements for State Governors' review (see Sec. 204.1 of
this chapter).
(Sec. 1102, 49 Stat. 647, 42 U.S.C. 1302; sec. 7(b), 68 Stat. 658, 29
U.S.C. 37(b); sec. 139, 84 Stat. 1323, 42 U.S.C. 2677(b))
[38 FR 16872, June 27, 1973, as amended at 53 FR 36579, Sept. 21, 1988]
Sec. 204.3 Responsibilities of the State.
The State agency shall be responsible for assuring that the benefits
and services available under titles IV-A, IV-D,
[[Page 19]]
and IV-F are furnished in an integrated manner.
[57 FR 30425, July 9, 1992]
Sec. 204.4 Grant appeals.
(a) Scope. This section applies to certain determinations (as set
forth in part 16, appendix A, section C of this title), made with
respect to direct, discretionary project grants awarded by the Family
Support Administration, and such other grants or grant programs as the
Administrator, with the approval of the Secretary, may designate. The
statutory authority for current grant programs to which this section
applies appears in the appendix to this section. This section is also
applicable to determinations with respect to grants which were made
under authority which has expired or been repealed since the grants were
made, even though such authority does not appear in the appendix.
(b) Submission. (1) A grantee who has received notification, as
described in Sec. 16.3 (b) and (c) of this title, of a determination
described in part 16, appendix A, section C of this title, may request
reconsideration by informing the Grants Appeals Officer as identified in
the final adverse determination or otherwise designated by the
Administrator, Family Support Administration, Washington, DC 20201 of
the grantee's intent to contest the determination. The grantee's request
for reconsideration must be postmarked no later than 30 days after the
postmark date of the written notification of such determination, except
when the Grant Appeals Officer grants an extension of time for good
cause.
(2) Although the request need not follow any prescribed form, it
shall clearly identify the question or questions in dispute and contain
a full statement of the grantee's position with respect to such question
or questions, and the pertinent facts and reasons in support of such
position. The grantee shall attach to his submission a copy of the
agency notification specified in Sec. 16.3(b) of this title.
(c) Action by the Administration on requests for reconsideration.
(1) Upon receipt of such an application the Grant Appeals Officer will
inform the grantee that:
(i) His request is under review, and
(ii) If no decision is received within 90 days of the postmark date
of the grantee's request for reconsideration, the determination may be
appealed to the Departmental Grant Appeals Board.
(2) The Grant Appeals Officer will reconsider the determination
appealed from, considering any material submitted by the grantee and any
other material necessary.
(3) If the response to the grantee is adverse to the grantee's
position, the response will include notification of the grantee's right
to appeal to the Departmental Grant Appeals Board.
Appendix
This section is issued under sections 1, 5, 6, and 7 of
Reorganization Plan No. 1 of 1953, 18 FR 2053, 67 Stat. 631 and is
applicable to programs carried out under the following authorities:
(1) Section 222(a) and (b) of the Social Security Amendments of 1972
(Pub. L. 92-603).
(2) Section 426 of the Social Security Act (42 U.S.C. 262).
(3) Section 707 of the Social Security Act (42 U.S.C. 907).
(4) Section 1110 of the Social Security Act (42 U.S.C. 1310).
(5) Section 1115 of the Social Security Act (42 U.S.C. 1315).
(Secs. 1, 5, 6, 7 Reorganization Plan No. 1 of 1953, 67 Stat. 631)
[40 FR 51443, Nov. 5, 1975, as amended at 53 FR 36579, Sept. 21, 1988]
PART 205_GENERAL ADMINISTRATION_PUBLIC ASSISTANCE PROGRAMS--Table of Contents
Sec.
205.5 Plan amendments.
205.10 Hearings.
205.25 Eligibility of supplemental security income beneficiaries for
food stamps or surplus commodities.
205.30 Methods of administration.
205.32 Procedures for issuance of replacement checks.
205.35 Mechanized claims processing and information retrieval systems;
definitions.
205.36 State plan requirements.
205.37 Responsibilities of the Administration for Children and Families
(ACF).
205.38 Federal financial participation (FFP) for establishing a
statewide mechanized system.
205.44 [Reserved]
[[Page 20]]
205.45 Federal financial participation in relation to State emergency
welfare preparedness.
205.50 Safeguarding information for the financial assistance programs.
205.51 Income and eligibility verification requirements.
205.52 Furnishing of social security numbers.
205.55 Requirements for requesting and furnishing eligibility and income
information.
205.56 Requirements governing the use of income and eligibility
information.
205.57 Maintenance of a machine readable file; requests for income and
eligibility information.
205.58 Income and eligibility information; specific agreements required
between the State agency and the agency supplying the
information.
205.60 Reports and maintenance of records.
205.70 Availability of agency program manuals.
205.100 Single State agency.
205.101 Organization for administration.
205.120 Statewide operation.
205.130 State financial participation.
205.150 Cost allocation.
205.160 Equipment--Federal financial participation.
205.170 State standards for office space, equipment, and facilities.
205.190 Standard-setting authority for institutions.
Authority: 42 U.S.C. 602, 603, 606, 607, 1302, 1306(a), and 1320b-7:
42 U.S.C. 1973gg-5.
Sec. 205.5 Plan amendments.
(a) State plan requirements. A State plan under title I, IV-A, X,
XIV, or XVI (AABD) of the Social Security Act must provide that the plan
will be amended whenever necessary to reflect new or revised Federal
statutes or regulations, or material change in any phase of State law,
organization, policy or State agency operation.
(b) Federal financial participation. Except where otherwise
provided, Federal financial participation is available in the additional
expenditures resulting from an amended provision of the State plan as of
the first day of the calendar quarter in which an approvable amendment
is submitted or the date on which the amended provision becomes
effective in the State, whichever is later.
[39 FR 34542, Dec. 26, 1974, as amended at 53 FR 36579, Sept. 21, 1988]
Sec. 205.10 Hearings.
(a) State plan requirements. A State plan under title I, IV-A, X,
XIV, or XVI(AABD) of the Social Security Act shall provide for a system
of hearings under which:
(1) The single State agency responsible for the program shall be
responsible for fulfillment of hearing provisions which shall provide
for:
(i) A hearing before the State agency, or
(ii) An evidentiary hearing at the local level with a right of
appeal to a State agency hearing. Where a State agency adopts a system
of evidentiary hearings with an appeal to a State agency hearing, it
may, in some political subdivisions, permit local evidentiary hearings,
and in others, provide for a single hearing before the State agency.
Under this requirement hearings shall meet the due process standards set
forth in the U.S. Supreme Court decision in Goldberg v. Kelly, 397 U.S.
254 (1970) and the standards set forth in this section.
(2) Hearing procedures shall be issued and publicized by the State
agency. Such procedures shall provide for a face-to-face hearing or, at
State option, a hearing by telephone when the applicant or recipient
also agrees. Under this provision, the State shall assure that the
applicant or recipient is afforded all rights as specified in this
section, whether the hearing is face-to-face or by telephone;
(3) Every applicant or recipient shall be informed in writing at the
time of application and at the time of any action affecting his claim:
(i) Of his right to a hearing, as provided in paragraph (a)(5) of
this section;
(ii) Of the method by which he may obtain a hearing;
(iii) That he may be represented by an authorized representative,
such as legal counsel, relative, friend, or other spokesman, or he may
represent himself.
(4) In cases of intended action to discontinue, terminate, suspend
or reduce assistance or to change the manner or form of payment to a
protective, vendor, or two-party payment under Sec. 234.60:
[[Page 21]]
(i) The State or local agency shall give timely and adequate notice,
except as provided for in paragraphs (a)(4) (ii), (iii), or (iv) of this
section. Under this requirement:
(A) Timely means that the notice is mailed at least 10 days before
the date of action, that is, the date upon which the action would become
effective;
(B) Adequate means a written notice that includes a statement of
what action the agency intends to take, the reasons for the intended
agency action, the specific regulations supporting such action,
explanation of the individual's right to request an evidentiary hearing
(if provided) and a State agency hearing, the circumstances under which
assistance is continued if a hearing is requested, and if the agency
action is upheld, that such assistance must be repaid under title IV-A,
and must also be repaid under titles I, X, XIV or XVI (AABD) if the
State plan provides for recovery of such payments.
(ii) The agency may dispense with timely notice but shall send
adequate notice not later than the date of action when:
(A) The agency has factual information confirming the death of a
recipient or of the AFDC payee when there is no relative available to
serve as new payee;
(B) The agency receives a clear written statement signed by a
recipient that he no longer wishes assistance, or that gives information
which requires termination or reduction of assistance, and the recipient
has indicated, in writing, that he understands that this must be the
consequence of supplying such information;
(C) The recipient has been admitted or committed to an institution,
and further payments to that individual do not qualify for Federal
financial participation under the State plan;
(D) The recipient has been placed in skilled nursing care,
intermediate care or long-term hospitalization;
(E) The claimant's whereabouts are unknown and agency mail directed
to him has been returned by the post office indicating no known
forwarding address. The claimant's check must, however, be made
available to him if his whereabouts become known during the payment
period covered by a returned check;
(F) A recipient has been accepted for assistance in a new
jurisdiction and that fact has been established by the jurisdiction
previously providing assistance;
(G) An AFDC child is removed from the home as a result of a judicial
determination, or voluntarily placed in foster care by his legal
guardian;
(H) For AFDC, the agency takes action because of information the
recipient furnished in a monthly report or because the recipient has
failed to submit a complete or a timely monthly report without good
cause. (See Sec. 233.37);
(I) A special allowance granted for a specific period is terminated
and the recipient has been informed in writing at the time of initiation
that the allowance shall automatically terminate at the end of the
specified period;
(J) The agency has made a presumption of mismanagement as a result
of a recipient's nonpayment of rent and provides for post hearings in
such circumstances;
(K) An individual's payment is suspended or reduced for failure to
meet a payment after performance obligation as set forth at Sec.
233.101(b)(2)(iv) (B) or (C) of this chapter. In addition to the
contents set forth in paragraph (a)(4)(i)(B) of this section, the
adequate notice must advise the individual of the right to have
assistance immediately reinstated retroactive to the date of action at
the previous month's level pending the hearing decision if he or she
makes a request for a hearing and reinstatement within 10 days after the
date of the notice.
(iii) When changes in either State or Federal law require automatic
grant adjustments for classes of recipients, timely notice of such grant
adjustments shall be given which shall be ``adequate'' if it includes a
statement of the intended action, the reasons for such intended action,
a statement of the specific change in law requiring such action and a
statement of the circumstances under which a hearing may be obtained and
assistance continued.
(iv) When the agency obtains facts indicating that assistance should
be discontinued, suspended, terminated, or reduced because of the
probable
[[Page 22]]
fraud of the recipient, and, where possible, such facts have been
verified through collateral sources, notice of such grant adjustment
shall be timely if mailed at least five (5) days before action would
become effective.
(5) An opportunity for a hearing shall be granted to any applicant
who requests a hearing because his or her claim for financial assistance
(including a request for supplemental payments under Sec. Sec. 233.23
and 233.27) is denied, or is not acted upon with reasonable promptness,
and to any recipient who is aggrieved by any agency action resulting in
suspension, reduction, discontinuance, or termination of assistance, or
determination that a protective, vendor, or two-party payment should be
made or continued. A hearing need not be granted when either State or
Federal law requires automatic grant adjustments for classes of
recipients unless the reason for an individual appeal is incorrect grant
computation.
(i) A request for a hearing is defined as a clear expression by the
claimant (or his authorized representative acting for him), to the
effect that he wants the opportunity to present his case to higher
authority. The State may require that such request be in written form in
order to be effective;
(ii) The freedom to make such a request shall not be limited or
interfered with in any way. The agency may assist the claimant to submit
and process his request;
(iii) The claimant shall be provided reasonable time, not to exceed
90 days, in which to appeal an agency action;
(iv) Agencies may respond to a series of individual requests for
hearing by conducting a single group hearing. Agencies may consolidate
only cases in which the sole issue involved is one of State or Federal
law or policy or changes in State or Federal law. In all group hearings,
the policies governing hearings must be followed. Thus, each individual
claimant shall be permitted to present his own case or be represented by
his authorized representative;
(v) The agency may deny or dismiss a request for a hearing where it
has been withdrawn by the claimant in writing, where the sole issue is
one of State or Federal law requiring automatic grant adjustments for
classes of recipients, where a decision has been rendered after a WIN
hearing before the manpower agency that a participant has, without good
cause, refused to accept employment or participate in the WIN program,
or has failed to request such a hearing after notice of intended action
for such refusal, or where it is abandoned. Abandonment may be deemed to
have occurred if the claimant, without good cause therefor, fails to
appear by himself or by authorized representative at the hearing
scheduled for such claimant.
(6) If the recipient requests a hearing within the timely notice
period:
(i) Assistance shall not be suspended, reduced, discontinued or
terminated (but is subject to recovery by the agency if its action is
sustained), until a decision is rendered after a hearing, unless:
(A) A determination is made at the hearing that the sole issue is
one of State or Federal law or policy, or change in State or Federal law
and not one of incorrect grant computation;
(B) A change affecting the recipient's grant occurs while the
hearing decision is pending and the recipient fails to request a hearing
after notice of the change;
(C) The recipient specifically requests that he or she not receive
continued assistance pending a hearing decision; or
(D) The agency has made a presumption of mismanagement as a result
of a recipient's nonpayment of rent and provides for the opportunity for
a hearing after the manner or form of payment has been changed for such
cases in accordance with Sec. 234.60 (a)(2) and (a)(11).
(ii) The agency shall promptly inform the claimant in writing if
assistance is to be discontinued pending the hearing decision; and
(iii) In any case where the decision of an evidentiary hearing is
adverse to the claimant, he shall be informed of and afforded the right
to make a written request, within 15 days of the mailing of the
notification of such adverse decision, for a State agency hearing and of
his right to request a de novo hearing. Unless a de novo hearing is
specifically requested by the appellant,
[[Page 23]]
the State agency hearing may consist of a review by the State agency
hearing officer of the record of the evidentiary hearing to determine
whether the decision of the evidentiary hearing officer was supported by
substantial evidence in the record. Assistance shall not be continued
after an adverse decision to the claimant at the evidentiary hearing.
(7) A State may provide that a hearing request made after the date
of action (but during a period not in excess of 10 days following such
date) shall result in reinstatement of assistance to be continued until
the hearing decision, unless (i) the recipient specifically requests
that continued assistance not be paid pending the hearing decision; or
(ii) at the hearing it is determined that the sole issue is one of State
or Federal law or policy. In any case where action was taken without
timely notice, if the recipient requests a hearing within 10 days of the
mailing of the notice of the action, and the agency determines that the
action resulted from other than the application of State or Federal law
or policy or a change in State or Federal law, assistance shall be
reinstated and continued until a decision is rendered after the hearing,
unless the recipient specifically requests that continued assistance not
be paid pending the hearing decision.
(8) The hearing shall be conducted at a reasonable time, date, and
place, and adequate preliminary written notice shall be given.
(9) Hearings shall be conducted by an impartial official (officials)
or designee of the agency. Under this requirement, the hearing official
(officials) or designee shall not have been directly involved in the
initial determination of the action in question.
(10) When the hearing involves medical issues such as those
concerning a diagnosis, an examining physician's report, or a medical
review team's decision, a medical assessment other than that of the
person or persons involved in making the original decision shall be
obtained at agency expense and made part of the record if the hearing
officer considers it necessary.
(11) In respect to title IV-C, when the appeal has been taken on the
basis of a disputed WIN registration requirement, exemption
determination or finding of failure to appear for an appraisal
interview, a representative of the local WIN manpower agency shall,
where appropriate, participate in the conduct of the hearing.
(12) The hearing shall include consideration of:
(i) An agency action, or failure to act with reasonable promptness,
on a claim for financial assistance, which includes undue delay in
reaching a decision on eligibility or in making a payment, refusal to
consider a request for or undue delay in making an adjustment in
payment, and discontinuance, termination or reduction of such
assistance;
(ii) Agency decision regarding:
(A) Eligibility for financial assistance in both initial and
subsequent determinations,
(B) Amount of financial assistance or change in payments,
(C) The manner or form of payment, including restricted or
protective payments, even though no Federal financial participation is
claimed.
(13) The claimant, or his representative, shall have adequate
opportunity:
(i) To examine the contents of his case file and all documents and
records to be used by the agency at the hearing at a reasonable time
before the date of the hearing as well as during the hearing;
(ii) At his option, to present his case himself or with the aid of
an authorized representative;
(iii) To bring witnesses;
(iv) To establish all pertinent facts and circumstances;
(v) To advance any arguments without undue interference;
(vi) To question or refute any testimony or evidence, including
opportunity to confront and cross-examine adverse witnesses.
(14) Recommendations or decisions of the hearing officer or panel
shall be based exclusively on evidence and other material introduced at
the hearing. The transcript or recording of testimony and exhibits, or
an official report containing the substance of what transpired at the
hearing, together with all papers and requests filed in the proceeding,
and the recommendation or decision of the hearing officer or
[[Page 24]]
panel shall constitute the exclusive record and shall be available to
the claimant at a place accessible to him or his representative at a
reasonable time.
(15) Decisions by the hearing authority shall:
(i) In the event of an evidentiary hearing, consist of a memorandum
decision summarizing the facts and identifying the regulations
supporting the decision;
(ii) In the event of a State agency de novo hearing, specify the
reasons for the decision and identify the supporting evidence and
regulations.
Under this requirement no persons who participated in the local decision
being appealed shall participate in a final administrative decision on
such a case.
(16) Prompt, definitive, and final administrative action shall be
taken within 90 days from the date of the request for a hearing.
(17) The claimant shall be notified of the decision in writing and,
to the extent it is available to him, of his right to appeal to State
agency hearing or judicial review.
(18) When the hearing decision is favorable to the claimant, or when
the agency decides in favor of the claimant prior to the hearing, the
agency shall promptly make corrective payments retroactively to the date
the incorrect action was taken.
(19) All State agency hearing decisions shall be accessible to the
public (subject to provisions of safeguarding public assistance
information).
(b) Federal financial participation. Federal financial participation
is available for the following items:
(1) Payments of assistance continued pending a hearing decision.
(2) Payments of assistance made to carry out hearing decisions, or
to take corrective action after an appeal but prior to hearing, or to
extend the benefit of a hearing decision or court order to others in the
same situation as those directly affected by the decision or order. Such
payments may be retroactive in accordance with applicable Federal
policies on corrective payments.
(3) Payments of assistance within the scope of Federally aided
public assistance programs made in accordance with a court order.
(4) Administrative costs incurred by the agency for:
(i) Providing transportation for the claimant, his representative
and witnesses to and from the place of the hearing;
(ii) Meeting other expenditures incurred by the claimant in
connection with the hearing;
(iii) Carrying out the hearing procedures, including expenses of
obtaining an additional medical assessment.
[38 FR 22007, Aug. 15, 1973, as amended at 44 FR 17941, Mar. 23, 1979;
45 FR 20480, Mar. 28, 1980; 47 FR 5673, Feb. 5, 1982; 47 FR 47827, Oct.
28, 1982; 51 FR 9202, Mar. 18, 1986; 53 FR 36579, Sept. 21, 1988; 57 FR
30425, July 9, 1992]
Sec. 205.25 Eligibility of supplemental security income beneficiaries for food stamps or surplus commodities.
(a) In respect to any individual who is receiving supplemental
security income benefits under title XVI of the Social Security Act, the
State agency shall make the following determinations:
(1) The amount of assistance such individual would have been
entitled to receive for any month under the appropriate State plan in
effect for December 1973, under title I, X, XIV, or XVI, and for such
purpose such individual shall be deemed to be aged, blind, or
permanently and totally disabled, as the case may be, under the
provisions of such plan.
(2) The bonus value of the food stamps (according to the Food Stamp
Schedule effective for July 1973) such individual would have been
entitled to receive for such month, assuming the individual were
receiving the assistance determined under paragraph (a)(1) of this
section.
(3) The amount of benefits such individual is receiving for such
month under Title XVI, plus supplementary payments as defined in section
1616(a) of the Social Security Act and payments pursuant to section 212
of Pub. L. 93-66, if any.
(b) If the amount determined in paragraph (a)(1) of this section
plus the amount determined in paragraph (a)(2)
[[Page 25]]
of this section exceeds the amount determined in paragraph (a)(3) of
this section, such individual shall be eligible to participate in the
food stamp program established by the Food Stamp Act of 1964 or surplus
commodities distribution programs established by the Secretary of
Agriculture pursuant to section 416 of the Agricultural Act of 1949,
section 32 of Pub. L. 74-320, or any other law, in accordance with
regulations and procedures established by the Secretary of Agriculture.
(c) For purposes of paragraph (a)(3) of this section, the State
agency shall obtain the amount of the title XVI payment and the amount
of any Federally administered State supplementary payment from the
Social Security Administration.
(d) The State agency shall redetermine the eligibility of
individuals to participate in the food stamp or surplus commodities
distribution programs hereunder at such times as the Secretary of
Agriculture requires re-certification for such stamps or commodities.
[38 FR 34324, Dec. 13, 1973]
Sec. 205.30 Methods of administration.
State plan requirements: A State plan for financial assistance under
title I, IV-A, X, XIV or XVI (AABD) of the Social Security Act must
provide for such methods of administration as are found by the Secretary
to be necessary for the proper and efficient operation of the plan.
[45 FR 56684, Aug. 25, 1980]
Sec. 205.32 Procedures for issuance of replacement checks.
(a) State plan requirements. A State plan under title IV-A of the
Social Security Act shall provide that (1) procedures are in effect to
ensure that no undue delays occur in issuing a replacement check; and
(2) when applicable, prior to the issuance of a replacement check, the
State agency must:
(i) Issue a stop payment order on the original AFDC check through
appropriate banking procedures; and
(ii) Require recipients to execute a signed statement attesting to
the nonreceipt, loss, or theft of the original FDC check. However, if
obtaining such a statement from the recipient will cause the issuance of
the check to be unduly delayed, the statement may be obtained within a
reasonable time after the check is issued.
(b) State option. A State plan may provide that as a condition for
issuance of a replacement check, a recipient is required to report a
lost or stolen AFDC check to the police or other appropriate
authorities. Under this provision, the State agency may require that the
recipient verify that a report was made to the police or other
appropriate authorities and, if so, the agency will establish procedures
for such verification.
[51 FR 9203, Mar. 18, 1986]
Sec. 205.35 Mechanized claims processing and information retrieval systems; definitions.
Section 205.35 through 205.38 contain State plan requirements for an
automated statewide management information system, conditions for FFP
and responsibilities of the Administration for Children and Families
(ACF). For purposes of Sec. Sec. 205.35 through 205.38:
(a) A mechanized claims processing and information retrieval system,
hereafter referred to as an automated application processing and
information retrieval system (APIRS), or the system, means a system of
software and hardware used:
(1) To introduce, control and account for data items in providing
public assistance under the Aid to Families with Dependent Children
(AFDC) State plan; and
(2) To retrieve and produce utilization and management information
about such aid and services as required by the single State agency and
Federal government for program administration and audit purposes.
(b) Planning means:
(1) The preliminary project activity to determine the requirements
necessitating the project, the activities to be undertaken, and the
resources required to complete the project;
(2) The preparation of an APD;
(3) The preparation of a detailed project plan describing when and
how the computer system will be designed and developed; and
(4) The preparation of a detailed implementation plan describing
specific
[[Page 26]]
training, testing, and conversion plans to install the computer system.
(c) The following terms are defined at 45 CFR part 95, subpart F,
Sec. 95.605:
Annually updated advance automatic data processing planning
document;
Design or System Design;
Development;
Initial advance automatic data processing planning document;
Installation;
Operation; and
Software.
[51 FR 45330, Dec. 18, 1986, as amended at 53 FR 36579, Sept. 21, 1988;
55 FR 4379, Feb. 7, 1990; 59 FR 30708, June 15, 1994]
Sec. 205.36 State plan requirements.
A State plan under title IV-A of the Social Security Act shall, at
the option of the State, provide for the establishment and operation, in
accordance with an (initial and annually updated) advance automated data
processing planning document approved by SSA, of an automated statewide
management information system designed effectively and efficiently, to
assist management in the administration of an approved AFDC State plan.
The submission process to amend the State plan is explained in Sec.
201.3. This system must be designed:
(a) To automatically control and account for--
(1) All the factors in the total eligibility determination process
under the plan for aid, including but not limited to:
(i) Identifiable correlation factors (such as social security
numbers, names, dates of birth, home addresses, and mailing addresses
(including postal ZIP codes), of all applicants and recipients of AFDC
and the relative with whom any child who is an applicant or recipient is
living).
(A) To assure sufficient compatibility among the systems of
different jurisdictions, and
(B) To permit periodic screening to determine whether an individual
is or has been receiving benefits from more than one jurisdiction.
(ii) Checking records of applicants and recipients of such aid on a
periodic basis with other agencies, both intra and inter-state, for
eligibility determination, verification and payment as required by other
provisions of the Social Security Act.
(2) The costs, quality, and delivery of funds and services furnished
to applicants for and recipients of such aid.
(b) To notify the appropriate State officials of child support, food
stamp, social service, and medical assistance programs approved under
title XIX whenever a case/recipient for aid and services becomes
ineligible or the amount of aid or services is changed.
(c) To electronically refer and exchange information with programs
under titles IV-D and IV-F for purposes of assuring that benefits and
services are provided in an integrated manner.
(d) To provide for security against unauthorized access to, or use
of, the data in the system.
[51 FR 13006, Apr. 17, 1986, as amended at 57 FR 47002, Oct. 14, 1992]
Sec. 205.37 Responsibilities of the Administration for Children and Families (ACF).
(a) ACF shall not approve the initial and annually updated advance
automatic data processing planning document unless the document, when
implemented, will carry out the requirements of the law and the
objectives of title IV-A (AFDC) Automated Application Processing and
Information Retrieval System Guide. The initial advance automatic data
processing planning document must include:
(1) A requirements analysis, including consideration of the program
mission, functions, organization, services, constraints and current
support relating to such system;
(2) A description of the proposed statewide management system,
including the description of information flows, input data formats,
output reports and uses;
(3) The security and interface requirements to be employed in such
statewide management system;
(4) A description of the projected resource requirements including
staff and other needs; and the resources available or expected to be
available to meet these requirements;
(5) A cost benefit analysis of alternative systems designs, data
processing services and equipment in terms of qualitative and
quantitative measures.
[[Page 27]]
The alternative systems considered should include the advantages of the
proposed system over the alternatives and should indicate the period of
time the system will be operated to justify the funds invested. ACF
certified systems that are already in place in other States must be
included in the alternatives to be considered and evaluated;
(6) A plan for distribution of costs, containing the basis for
rates, both direct and indirect, to be in effect under such a statewide
management system;
(7) An implementation plan with charts of development events,
testing description, proposed acceptance criteria, and backup and
fallback procedures to handle possible failure of a system; and
(8) Evidence that the State's system will be compatible with those
of the FSA to facilitate the exchange of data between the State and
Federal system.
(b) ACF shall on a continuing basis, review, assess, and inspect the
planning, design, and operation of, statewide management information
systems, with a view to determining whether, and to what extent, these
systems meet and continue to meet the requirements under these
regulations.
(c) If ACF finds that any statewide management information system
referred to in Sec. 205.38 fails to comply substantially with criteria,
requirements, and other undertakings prescribed by the approved advance
automatic data processing planning document, approval of such document
shall be suspended. The State will be given written notice of the
suspension. The notice of suspension will state the reason for the
suspension, whether the suspended system complies with the criteria for
50 percent FFP under 45 CFR part 95, the actions required for future
Federal funding, and the effective date of the suspension. The
suspension shall be effective as of the date that the system failed to
comply substantially with the approved APD. The suspension shall remain
in effect until ACF makes a determination that such system complies with
prescribed criteria, requirements, and other undertakings for future
Federal funding. Should a State cease development of their approved
system, either by voluntary withdrawal or as a result of Federal
suspension, all Federal incentive funds invested to date that exceed the
normal administrative FFP rate (50 percent) will be subject to
recoupment.
(d) ACF shall provide technical assistance to States as is deemed
necessary to assist States to plan, design, develop, or install and
provide for the security of the management information systems.
(e) Approvals of the systems by ACF under the provisions of this
section will be undertaken only as a result of State applications for
increased matching. The requirements of 45 CFR part 95, subpart E and
subpart F apply.
[51 FR 13006, Apr. 17, 1986, as amended at 53 FR 36579, Sept. 21, 1988;
55 FR 4379, Feb. 7, 1990; 56 FR 1493, Jan. 15, 1991; 59 FR 30709, June
15, 1994]
Sec. 205.38 Federal financial participation (FFP) for establishing a statewide mechanized system.
(a) Effective July 1, 1981 through March 31, 1994, FFP is available
at 90 percent of expenditures incurred for planning, design, development
or installation of a statewide automated application processing and
information retrieval system which are consistent with an approved ADP.
(Beginning April 1, 1994 the match rate available for development of
title IV-A automated systems is 50 percent.) The 90 percent FFP includes
the purchase or rental of computer equipment and software directly
required for and used in the operation of this system.
(b) ACF will approve the system provided the following conditions
are met--
(1) ACF determines that the system is likely to provide more
efficient, economical, and effective administration of the AFDC program.
(2) The system is compatible with the claims processing and
information retrieval systems used in the administration of State plans
approved under title XIX, and State programs where there is FFP under
title XX.
(3) The system meets the requirements referred to in Sec. 205.36.
(4) The system meets criteria established in the title IV-A (AFDC)
Automated Application Processing and Information Retrieval System Guide
[[Page 28]]
issued by ACF and which provides specific standard requirements for
major functions, such as automated eligibility determination, grant
computation, verification, referral, management control, compability,
and data security.
(5) The State agency certifies that--
(i) The State will have all ownership rights in software or
modifications thereof and associated documentation designed or developed
with 90 percent FFP under this section, except that the Department of
Health and Human Services reserves a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish, or otherwise use, and to
authorize others to use for Federal government purposes, such software,
modifications, and documentation;
(ii) Methods and procedures for properly charging the cost of all
systems whether acquired from public or private sources shall be in
accordance with Federal regulations in part 74 of this title and the
applicable ACF title IV-A (AFDC) Automated Application Processing and
Information Retrieval System Guide;
(iii) The complete system planned, designed, developed, installed,
and hardware acquired, with FFP under these regulations will be used for
a period of time which is consistent with the advance planning document
as approved, or which ACF determines is sufficient to justify the
Federal funds invested;
(iv) Information in the system will be safeguarded in accordance
with applicable Federal law; and
(v) Access to the system in all of its aspects, including design,
development, and operation, including work performed by any source, and
including cost records of contractors and subcontractors, shall be made
available to the Federal Government by the State at intervals deemed
necessary by ACF to determine whether the conditions for approval are
being met and to determine its efficiency, economy and effectiveness.
(c) If ACF suspends approval, as described in Sec. 205.37, of the
advance automated data processing planning document and/or system, FFP
at the higher matching rate shall not be allowed for any costs incurred,
until such time as the conditions for approval are met. Should the State
fail to correct the deficiencies which led to the suspension within 90
days of the date of notification of suspension or within a longer period
of time agreed to by both the State and ACF, all Federal incentive funds
invested to date that exceed the normal administrative FFP rate (50
percent) will be disallowed.
(d) Should a State voluntarily withdraw its approved APD and cease
development of the approved system, all Federal incentive funds invested
to date that exceed the normal administrative FFP rate (50 percent) will
be disallowed.
(e) Once a State is certified as having met the requirements
referred to in Sec. 205.36 incentive funding will not be allowable for
enhancements or other modifications unless these modifications are
authorized by the Administation for Children and Families as a result of
Federal legislative or regulatory change.
[51 FR 13007, Apr. 17, 1986, as amended at 53 FR 36579, Sept. 21, 1988;
59 FR 30709, June 15, 1994]
Sec. 205.44 [Reserved]
Sec. 205.45 Federal financial participation in relation to State emergency welfare preparedness.
(a) Under title IV-A, Federal financial participation is available
at the rate of 50 percent in expenditures for development and planning
activities for emergency welfare preparedness. Such activities must
relate to emergency welfare situations resulting from natural disasters,
civil disorders, and enemy caused disasters, as prescribed in
``Guidelines for the Preparation of State Emergency Welfare Services
Plan'' issued by Social and Rehabilitation Service, DHHS publication No.
(SRS) 72-23004. These activities include:
(1) Safekeeping essential documents and records;
(2) Planning and developing emergency operating capability for
providing food, lodging, clothing, and welfare registration and inquiry;
(3) Assuring that qualified individuals are responsible for the
planning and operation of each welfare function
[[Page 29]]
essential under emergency conditions for care and services for public
assistance recipients and potential recipients;
(4) Coordinating with other government and voluntary welfare
agencies, and welfare-related business and professional organizations
and associations, in developing emergency operating plans and attaining
operational readiness;
(5) Preparing and maintaining data on kinds, numbers, and locations
of essential welfare resources, including manpower;
(6) Developing ability to assess emergency welfare resources and
determining requirements necessary to care for public assistance cases
in the event of disaster or attack;
(7) Preparing plans for claiming and distributing the above
resources;
(8) Developing mutual aid agreements at State and local levels with
neighboring welfare organizations;
(9) Preparing and distributing written emergency operations plans
for public assistance agencies and operating units;
(10) Participating in preparedness exercises for the purpose of
testing plans and determining the role of public assistance programs in
relation to the overall preparedness program; and
(11) Travel incidental to any of the above activities.
(b) Federal financial participation is available at 50 percent under
title IV-A for providing training in emergency welfare preparedness for
all staff and for volunteers.
(c) In Guam, Puerto Rico, and the Virgin Islands, Federal financial
participation is available at the rate of 75 percent in expenditures for
emergency welfare preparedness under titles I, X, XIV, XVI (AABD) of the
Social Security Act.
(d) The cost of these activities must be allocated to all programs
benefited in accordance with part 74, subtitle A of title 45 of the Code
of Federal Regulations.
[41 FR 23387, June 10, 1976, as amended at 51 FR 9203, Mar. 18, 1986]
Sec. 205.50 Safeguarding information for the financial assistance programs.
(a) State plan requirements. A State plan for financial assistance
under title IV-A of the Social Security Act, must provide that:
(1) Pursuant to State statute which imposes legal sanctions:
(i) The use or disclosure of information concerning applicants and
recipients will be limited to purposes directly connected with:
(A) The administration of the plan of the State approved under title
IV-A, the plan or program of the State under title IV-B, IV-D, IV-E, or
IV-F or under title I, X, XIV, XVI (AABD), XIX, XX, or the Supplemental
Security Income (SSI) program established by title XVI. Such purposes
include establishing eligibility, determining the amount of assistance,
and providing services for applicants and recipients.
(B) Any investigation, prosecution, or criminal or civil proceeding
conducted in connection with the administration of any such plans or
programs.
(C) The administration of any other Federal or federally assisted
program which provides assistance, in cash or in kind, or services,
directly to individuals on the basis of need.
(D) The verification to the Employment Security Agency, or other
certifying agency that an individual has been an AFDC recipient for at
least 90 days or is a WIN or WIN Demonstration participant pursuant to
Pub. L. 97-34, the Economic Recovery Tax Act of 1981.
(E) Any audit or similar activity, e.g., review of expenditure
reports or financial review, conducted in connection with the
administration of any such plan or program by any governmental entity
which is authorized by law to conduct such audit or activity.
(F) The administration of a State unemployment compensation program.
(G) The reporting to the appropriate agency or official of
information on known or suspected instances of physical or mental
injury, sexual abuse or exploitation, or negligent treatment or
maltreatment of a child receiving aid under circumstances which indicate
that the child's health or welfare is threatened.
[[Page 30]]
(ii) The State agency has authority to implement and enforce the
provisions for safeguarding information about applicants and recipients:
(iii) Disclosure of any information that identifies by name or
address any applicant or recipient to any Federal, State, or local
committee or legislative body other than in connection with any activity
under paragraph (a)(1)(i)(E) of this section is prohibited.
(iv) Publication of lists or names of applicants and recipients will
be prohibited. Exception. In respect to a State plan for financial
assistance under title I, IVA, X, XIV, or XVI (AABD) of the Social
Security Act, an exception to this restriction may be made by reason of
the enactment or enforcement of State legislation, prescribing any
conditions under which public access may be had to records of the
disbursement of funds or payments under such titles within the State, if
such legislation prohibits the use of any list or names obtained through
such access to such records for commercial or political purposes.
(v) The State or local agency responsible for the administration of
the State plan has authority to disclose the current address of a
recipient to a State or local law enforcement officer at his or her
request. Such information is disclosed only to law enforcement officers
who provide the name and Social Security number of the recipient and
satisfactorily demonstrate that:
(A) The recipient is a fugitive felon (as defined by the State);
(B) The location or apprehension of such felon is within the law
officer's official duties; and
(C) The request is made in the proper exercise of those duties.
(2) The agency will have clearly defined criteria which govern the
types of information that are safeguarded and the conditions under which
such information may be released or used. Under this requirement:
(i) Types of information to be safeguarded include but are not
limited to:
(A) The names and addresses of applicants and recipients and amounts
of assistance provided (unless excepted under paragraph (a)(1)(iv) of
this section);
(B) Information related to the social and economic conditions or
circumstances of a particular individual including information obtained
from any agency pursuant to Sec. 205.55; information obtained from the
Internal Revenue Service (IRS) and the Social Security Administration
(SSA) must be safeguarded in accordance with procedures set forth by
those agencies;
(C) Agency evaluation of information about a particular individual;
(D) Medical data, including diagnosis and past history of disease or
disability, concerning a particular individual.
(ii) The release or use of information concerning individuals
applying for or receiving financial assistance is restricted to persons
or agency representatives who are subject to standards of
confidentiality which are comparable to those of the agency
administering the financial assistance programs.
(iii) Except in the case of information requested pursuant to
Sec. Sec. 205.55 and 205.56, or in the case of an emergency situation
when the individual's prior consent for the release of information
cannot be obtained, the family or individual is informed whenever
possible of a request for information from an outside source, and
permission is obtained to meet the request. In an emergency situation
when the individual's consent for the release of information cannot be
obtained, the individual will be notified immediately.
(iv) In the event of the issuance of a subpoena for the case record
or for any agency representative to testify concerning an applicant or
recipient, the court's attention is called, through proper channels to
the statutory provisions and the policies or rules and regulations
against disclosure of information.
(v) The same policies are applied to requests for information from a
governmental authority, the courts, or a law enforcement officer (except
as provided for under paragraph (a)(1)(v) with respect to fugitive
felons) as from any other outside source.
(3)(i) The agency will publicize provisions governing the
confidential nature of information about applicants and recipients,
including the legal sanctions
[[Page 31]]
imposed for improper disclosure and use, and will make these provisions
available to applicants and recipients and to other persons and agencies
to whom information is disclosed.
(ii) All information obtained pursuant to the income and eligibility
verification requirements at Sec. Sec. 205.55 and 205.56 will be stored
and processed so that no unauthorized personnel can acquire or retrieve
the information by any means.
(iii) All persons with access to information obtained pursuant to
the income and eligibility verification requirements under Sec. Sec.
205.55 and 205.56 will be advised of the circumstances under which
access is permitted and the sanctions imposed for illegal use or
disclosure of the information.
(4) All materials sent or distributed to applicants, recipients, or
medical vendors, including material enclosed in envelopes containing
checks, will be limited to those which are directly related to the
administration of the program and will not have political implications
except to the extent required to implement the National Voter
Registration Act of 1993 (NVRA), Pub. L. 103-31. Under this requirement:
(i) Specifically excluded from mailing or distribution are materials
such as ``holiday'' greetings, general public announcements, alien
registration notices, and partisan voting information.
(ii) Not prohibited from such mailing or distribution are materials
in the immediate interest of the health and welfare of applicants and
recipients, such as announcements of free medical examinations,
availability of surplus food, and consumer protection information;
(iii) Only the names of persons directly connected with the
administration of the program are contained in material sent or
distributed to applicants, recipients, and vendors, and such persons are
identified only in their official capacity with the State or local
agency.
(iv) Under NVRA, the agency must distribute voter information and
registration materials as specified in NVRA.
(b) Voluntary voter registration activities. For States that are
exempt from the requirements of NVRA, voter registration may be a
voluntary activity so long as the provisions of section 7(a)(5) of NVRA
are observed.
(c) State plan requirements for programs of financial assistance in
Puerto Rico, the Virgin Islands, and Guam. A State plan under title I,
X, XIV, or XVI (AABD) of the Social Security Act must meet all the
requirements of paragraph (a) of this section, with the exception of
paragraphs (a)(1)(i) (D) and (E), of this section, and also provide for
disclosure of information concerning applicants and recipients for use
by public officials who require such information in connection with
their official duties. Under this requirement, such information shall be
available only to public officials who certify in writing that:
(1) They are public officials as defined by State or Federal law of
general applicability; and
(2) The information to be disclosed and used is required in
connection with their official duties.
[45 FR 56684, Aug. 25, 1980, as amended at 47 FR 46506, Oct. 19, 1982;
49 FR 35599, Sept. 10, 1984; 51 FR 7214, Feb. 28, 1986; 51 FR 9203, Mar.
18, 1986; 54 FR 42243, Oct. 13, 1989; 57 FR 30157, July 8, 1992; 58 FR
49220, Sept. 22, 1993; 59 FR 26142, May 19, 1994; 61 FR 58143, Nov. 13,
1996]
Sec. 205.51 Income and eligibility verification requirements.
(a) A State plan under title I, IV-A, X, XIV or XVI (AABD) of the
Social Security Act must provide that there be an Income and Eligibility
Verification System in the State. Income and Eligibility Verification
System (IEVS) means a system through which the State agency:
(1) Co-ordinates data exchanges with other Federally-assisted
benefit programs covered by section 1137(b) of the Act;
(2) Requests and uses income and benefit information as specified in
section 1137(a)(2) of the Act and Sec. Sec. 205.55 and 205.56; and
(3) Adheres to standardized formats and procedures in exchanging
information with the other programs and agencies and in providing such
information as may be useful to assist Federal, State and local agencies
in the administration of the child support program and the Social
Security Administration in the administration of the title
[[Page 32]]
II and title XVI (SSI) programs. The State agency (UC) information from
the State Wage Information Collection Agency, described in paragraph (b)
of this section; from the agency administering the State's unemployment
compensation program (UC) under section 3304 of the Internal Revenue
Code; from agencies in other States cited in Sec. 205.55(a)(5), as set
forth by the Secretary; from SSA, as set forth by the Commissioner of
Social Security; and from IRS, as set forth by the Commissioner of
Internal Revenue.
(b) A State plan under title I, IV-A, X, XIV or XVI (AABD) of the
Social Security Act must provide that, as part of its Income and
Eligibility Verification System, there be a State Wage Information
Collection Agency in the State. State Wage Information Collection Agency
(SWICA) means the State agency receiving quarterly wage reports from
employers in the State (which may be the agency administering the
State's unemployment compensation program), or an alternative system
which has been determined by the Secretary of Labor, in consultation
with the Secretary of Agriculture and the Secretary of Health and Human
Services, to be as effective and timely in providing employment related
income and eligibility information.
(c) Wage information maintained by a SWICA which receives quarterly
wage reports from employers but does not use these reports for
computation of employment compensation shall:
(1) Contain the social security number, first and last name and
middle initial, wages earned for the period of the report, and an
identifier of the employer (such as name and address) for each employee;
(2) Include all employers covered by the State's UC law and require
such employers to report wage information (as specified above) for each
employee within 30 days from the end of each calendar quarter;
(3) Accumulate earnings reported by employers for periods no longer
than calendar quarters;
(4) Be machine readable; i.e., maintained in a fashion that permits
automated processing; and
(5) Be available to other agencies in the State, to agencies in
other States, and to Social Security Administration for establishing or
verifying eligibility and benefit amounts under titles II and XVI of the
Social Security Act, pursuant to agreements as required in Sec. 205.58.
(d) A State shall obtain prior written approval from the Department,
where appropriate, in accordance with 45 CFR 95.611, for any new
developmental costs for automatic data processing equipment and services
incurred in meeting IEVS requirements.
[51 FR 7214, Feb. 28, 1986]
Sec. 205.52 Furnishing of social security numbers.
The State plan under title I, IV-A, X, XIV, or CVI (AABD) of the
Social Security Act must provide that:
(a) As a condition of eligibility, each applicant for or recipient
of aid will be required:
(1) To furnish to the State or local agency a social security
account number, hereinafter referred to as the SSN (or numbers, if more
than one has been issued); and
(2) If he cannot furnish a SSN (either because such SSN has not been
issued or is not known), to apply for such number through procedures
adopted by the State or local agency with the Social Security
Administration. If such procedures are not in effect, the applicant or
recipient shall apply directly for such number, submit verification of
such application, and provide the number upon its receipt.
(b) The State or local agency will assist the applicant or recipient
in making applications for SSNs and will comply with the procedures and
requirements established by the Social Security Administration for
application, issuance, and verification of social security account
numbers.
(c) The State or local agency will not deny, delay, or discontinue
assistance pending the issuance or verfication of such numbers if the
applicant or recipient has complied with the requirements of paragraph
(a) of this section.
(d) The State or local agency will use such account numbers, in
addition to any other means of identification it
[[Page 33]]
may determine to employ, in the administration of the plan.
(e) ``Applicant'' and ``recipient'' include for the purposes of this
section the individuals seeking or receiving assistance and any other
individual whose needs are considered in determining the amount of
assistance.
(f) The State or local agency shall notify the applicant or
recipient that the furnishing of the SSN is a condition of eligibility
for assistance required by section 1137 of the Social Security Act and
that the SSN will be utilized in the administration of the program.
(g) The State agency will submit all unverified social security
numbers to the Social Security Administration (SSA) for verification.
The State agency may accept as verified a social security number
provided directly to the State agency by SSA or by another Federal or
federally-assisted benefit program which has received the number from
SSA or has submitted it to SSA for verification.
[51 FR 7217, Feb. 28, 1986]
Sec. 205.55 Requirements for requesting and furnishing eligibility and income information.
A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the
Social Security Act must provide that:
(a) Except as provided in paragraph (b), the State agency will
request through the IEVS:
(1) Wage information from the SWICA for all applicants at the first
opportunity following receipt of the application and for all recipients
on a quarterly basis.
(2) Unemployment compensation information from the agency
administering the State's unemployment compensation program under
section 3304 of the Internal Revenue Code of 1954 and section 303 of the
Act as follows:
(i) For applicants at the first opportunity following receipt of the
application and in each of the first three months in which the
individual is receiving aid, unless the individual is found to be
receiving unemployment compensation, in which case the information will
be requested until benefits are exhausted; and
(ii) In each of the first three months following any recipient-
reported loss of employment, unless the individual is found to be
receiving unemployment compensation, in which case the information will
be requested until the benefits are exhausted.
(3) All available information maintained by the Social Security
Administration for all applicants at the first opportunity following
receipt of the application in the manner set forth by the Commissioner
of Social Security. The State agency will also request such information
for all recipients as of the effective date of this provision for whom
such information has not previously been requested.
(4) Unearned income information from the Internal Revenue Service
available under section 6103 (l)(7)(B) of the Internal Revenue Code of
1954, for all applicants at the first opportunity following receipt of
the application for all recipients on a yearly basis. The request shall
be made at the time and in the manner set forth by the Commissioner of
Internal Revenue.
(5) As necessary, any income or other information affecting
eligibility available from agencies in the State or other States
administering:
(i) An AFDC program (in another State) under title IV-A of the
Social Security Act;
(ii) A Medicaid program under title XIX of the Social Security Act;
(iii) An unemployment compensation program (in another State) under
section 3304 of the Internal Revenue Code of 1954;
(iv) A Food Stamp program under the Food Stamp Act of 1977, as
amended;
(v) Any State program administered under plan approved under title
I, X, XIV, or XVI (AABD) of the Social Security Act; and
(vi) A SWICA (in another State).
(b)(1) With respect to individuals who cannot furnish an SSN at
application, information specified in paragraph (a) will be requested at
the first opportunity provided by each source after the State agency is
provided with the SSN.
[[Page 34]]
(2) For the purposes of this section, applicants and recipients
shall also include any other individuals whose income or resources are
considered in determining the amount of assistance, if the State agency
has obtained the SSN of such individuals.
(c) The State agency must furnish, when requested, income,
eligibility and benefit information to:
(1) Agencies in the State or other States administering the programs
cited in paragraph (a)(5) of this section, in accordance with specific
agreements as described in Sec. 205.58;
(2) The agency in the State or other States administering a program
under title IV-D of the Social Security Act; and
(3) The Social Security Administration for purposes of establishing
or verifying eligibility or benefit amounts under title II and XVI (SSI)
of the Social Security Act.
(d) The Secretary may, based upon application from a State, permit a
State to obtain and use income and eligibility information from an
alternate source or sources in order to meet any requirement of
paragraph (a) of this section. The State agency must demonstrate to the
Secretary that the alternate source or sources is as timely, complete
and useful for verifying eligibility and benefit amounts. The Secretary
will consult with the Secretary of Agriculture and the Secretary of
Labor prior to approval of a request. The State must continue to meet
the requirements of this section unless the Secretary has approved the
request.
(e) The State agency must, upon request, reimburse another agency
for reasonable costs incurred in furnishing income and eligibility
information as prescribed in this section, including new developmental
costs associated with furnishing such information, in accordance with
specific agreements as described in Sec. 205.58.
[51 FR 7215, Feb. 28, 1986]
Sec. 205.56 Requirements governing the use of income and eligibility information.
A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the
Social Security Act must provide that:
(a) The State agency will use the information obtained under Sec.
205.55, in conjunction with other information, for:
(1) Determining individuals' eligibility for assistance under the
State plan and determining the amount of assistance. States wishing to
exclude categories of information items from follow-up must submit for
the Secretary's approval a follow-up plan describing the categories of
information items which it proposes to exclude. For each category, the
State must provide a reasonable justification that follow-up is not
cost-effective. A formal cost-benefit analysis is not required. A State
may exclude information items from the following data sources without
written justification if followed up previously from another source:
Unemployment compensation information received from the Internal Revenue
Service, and earnings information received from the Social Security
Administration. Information items in these categories which are not
duplicative, but provide new leads, may not be excluded without written
justification. A State may submit a follow-up plan or alter its plan at
any time by notifying the Secretary and submitting the necessary
justification. The Secretary will approve or disapprove categories of
information items to be excluded under the plan within 60 days of its
submission. Those categories approved by the Secretary will constitute
an approved State follow-up plan for IEVS. For those information items
not excluded from follow-up,
(i) The State agency shall review and compare the information
obtained from each data exchange against information contained in the
case record to determine whether it affects the applicant's or the
recipient's eligibility or the amount of assistance.
(ii) The State agency shall verify that the information is accurate
and applicable to case circumstances either through the applicant or
recipient or through a third party, if such verification is determined
appropriate based on agency experience or is required under paragraph
(b) of this section.
(iii) For applicants, if the information is received during the
application
[[Page 35]]
period, the State agency shall use such information, to the extent
possible, in making the eligibility determination.
(iv) For individuals who are recipients when the information is
received or for whom a decision could not be made prior to authorization
of benefits, the State agency shall within forty-five (45) days of its
receipt, initiate a notice of case action or an entry in the case record
that no case action is necessary, except that: Completion of action may
be delayed beyond forty-five (45) days on no more than twenty (20)
percent of the information items targeted for follow-up, if:
(A) The reason that the action cannot be completed within forty-five
(45) days is the nonreceipt of requested third-party verification; and
(B) Action is completed promptly, when third party verification is
received or at the next time eligibility is redetermined, whichever is
earlier. If action is completed when eligibility is redetermined and
third party verification has not been received, the State agency shall
make its decision based on information provided by the recipient and any
other information in its possession.
(v) The State agency shall use appropriate procedures to monitor the
timeliness requirements specified in this subparagraph;
(2) Investigations to determine whether recipients received
assistance under the State plan to which they were not entitled; and
(3) Criminal or civil prosecutions based on receipt of assistance
under the State plan to which recipients were not entitled.
(b)(1) State agencies shall not take any adverse action to
terminate, deny, suspend or reduce benefits to an applicant or
recipient, based on information produced by a Federal computer matching
program that is subject to the requirements in the Computer Matching and
Privacy Protection Act (CMPPA) unless (i) The information has been
independently verified in accordance with the independent verification
requirements set out in the State agency's written agreement as required
by Sec. 205.58 or (ii) The independent verification requirement has
been waived by the Department's Data Integrity Board.
(2) The CMPPA defines a matching program as any computerized
comparison of (i) Two or more automated systems of records or a system
of records with non-Federal records for the purpose of (A) Establishing
or verifying the eligibility of, or continuing compliance with statutory
and regulatory requirements by, applicants for, recipients or
beneficiaries of, participants in, or providers of services with respect
to, cash or in-kind assistance or payments under Federal benefit
programs, or (B) Recouping payments or delinquent debts under such
Federal benefit programs, or (ii) Two or more automated Federal
personnel or payroll system of records or a system of Federal personnel
or payroll record with non-Federal records.
(c) If the agency intends to reduce, suspend, terminate or deny
benefits as a result of the actions taken pursuant to this section, the
agency must provide notice and the opportunity for a fair hearing in
accordance with Sec. 205.10(a).
[51 FR 7215, Feb. 28, 1986, as amended at 53 FR 52712, Dec. 29, 1988; 57
FR 53859, Nov. 13, 1992]
Sec. 205.57 Maintenance of a machine readable file; requests for income and eligibility information.
A State plan under title I, IV--A, X, XIV, or XVI (AABD) of the
Social Security Act must provide that:
(a) The State agency will maintain a file which is machine readable,
i.e., which is maintained in a fashion that permits automated
processing, and which contains the first and last name and verified
social security number of each person applying for or receiving
assistance under the plan.
(b) The State agency will use this file to exchange data with other
agencies pursuant to Sec. 205.55.
[51 FR 7216, Feb. 28, 1986]
Sec. 205.58 Income and eligibility information; specific agreements required between the State agency and the agency supplying the information.
(a) A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the
Social
[[Page 36]]
Security Act must provide that, in carrying out the requirements of
Sec. Sec. 205.55 and 205.56, the State agency will enter into specific
written agreements as described in paragraph (b) of this section with
those agencies providing income and eligibility information. Agreements
with Federal agencies are subject to the approval by the appropriate
Federal Data Integrity Boards. The agreements will contain the procedure
to be used in requesting and providing information.
(b) These agreements will include, but need not be limited to, the
following:
(1) Purpose of the request;
(2) Identification of all agency officials, by position with
authority to request information;
(3) Methods and timing of the requests for information, including
the machine readable format to be used, the period of time needed to
furnish the requested information and the basis for establishing this
period. Agreements with the SWICA and the agency administering the
Unemployment Compensation program in the State must provide that the
State agency shall obtain information no less frequently than twice
monthly;
(4) The type of information and reporting periods for which
information will be provided and the verification methodologies to be
used;
(5) Safeguards limiting release or redisclosure as required by
Federal or State law or regulation, including the requirements of Sec.
205.50 and as may be required by guidelines issued by the Secretary; and
(6) Reimbursement, if any, for the costs of furnishing the
information requested by the State agency, including new developmental
costs associated with furnishing such information.
[51 FR 7216, Feb. 28, 1986, as amended at 57 FR 53860, Nov. 13, 1992]
Sec. 205.60 Reports and maintenance of records.
A State plan under title I, IV--A, X, XIV, or XVI (AABD) of the
Social Security Act must provide that:
(a) The State agency will maintain or supervise the maintenance of
records necessary for the proper and efficient operation of the plan,
including records regarding applications, determination of eligibility,
the provision of financial assistance, and the use of any information
obtained under Sec. 205.55, with respect to individual applications
denied, recipients whose benefits have been terminated, recipients whose
benefits have been modified, and the dollar value of these denials,
terminations and modifications. Under this requirement, the agency will
keep individual records which contain pertinent facts about each
applicant and recipient. The records will include information concerning
the date of application and the date and basis of its disposition; facts
essential to the determination of initial and continuing eligibility
(including the individual's social security number, need for, and
provision of financial assistance); and the basis for discontinuing
assistance.
(b) The agency shall report as the Secretary prescribes for the
purpose of determining compliance with the requirements of Sec. Sec.
205.55 and 205.56 and for evaluating the effectiveness of the Income and
Eligibility Verification System.
[51 FR 7216, Feb. 28, 1986]
Sec. 205.70 Availability of agency program manuals.
State plan requirements. A State plan for financial assistance under
title I, IV-A, IV-B, X, XIV, or XVI (AABD) of the Social Security Act
must provide that:
(a) Program manuals and other policy issuances which affect the
public, including the State agency's rules and regulations governing
eligibility, need and amount of assistance, and recipient rights and
responsibilities will be maintained in the State office and in each
local and district office for examination on regular workdays during
regular office hours by individuals, upon request for review, study, or
reproduction by the individual.
(b)(1) A current copy of such material will be made available
without charge or at a charge related to the cost of reproduction for
access by the public through custodians who (i) request the material for
this purpose, (ii) are centrally located and publicly accessible to a
substantial number of the recipient population they serve, and (iii)
[[Page 37]]
agree to accept responsibility for filing all amendments and changes
forwarded by the agency.
(2) Under this requirement the material, if requested, must be made
available without charge or at a charge related to the cost of
reproduction to public or university libraries, the local or district
offices of the Bureau of Indian Affairs, and welfare or legal services
offices or organizations. The material may also be made available, with
or without charge, to other groups and to individuals. Wide availability
of agency policy materials is recommended.
(c) Upon request, the agency will reproduce without charge or at a
charge related to the cost of reproduction the specific policy materials
necessary for an applicant or recipient, or his representative, to
determine whether a fair hearing should be requested or to prepare for a
fair hearing; and will establish policies for reproducing policy
materials without charge, or at a charge related to cost, for any
individual who requests such material for other purposes.
[38 FR 26378, Sept. 20, 1973, as amended at 44 FR 17941, Mar. 23, 1979;
45 FR 56685, Aug. 25, 1980]
Sec. 205.100 Single State agency.
(a)(1) State plan requirements. A State plan for financial
assistance under title I, IV-A, X, XIV, or XVI (AABD) of the Social
Security Act must:
(i) Provide for the establishment or designation of a single State
agency with authority to administer or supervise the administration of
the plan.
(ii) Include a certification by the attorney general of the State
identifying the single State agency and citing the legal authority under
which such agency administers, or supervises the administration of, the
plan on a statewide basis including the authority to make rules and
regulations governing the administration of the plan by such agency or
rules and regulations that are binding on the political subdivisions, if
the plan is administered by them.
(2) [Reserved]
(b) Conditions for implementing the requirements of paragraph (a) of
this section. (1) The State agency will not delegate to other than its
own officials its authority for exercising administrative discretion in
the administration or supervision of the plan including the issuance of
policies, rules, and regulations on program matters.
(2) In the event that any rules and regulations or decisions of the
single State agency are subject to review, clearance, or other action by
other offices or agencies of the State government, the requisite
authority of the single State agency will not be impaired.
(3) In the event that any services are performed for the single
State agency by other State or local agencies or offices, such agencies
and offices must not have authority to review, change, or disapprove any
administrative decision of the single State agency, or otherwise
substitute their judgment for that of the agency as to the application
of policies, rules, and regulations promulgated by the State agency.
[45 FR 56685, Aug. 25, 1980]
Sec. 205.101 Organization for administration.
(a) A State plan for financial assistance under title I, IV-A, X,
XIV, or XVI (AABD) of the Social Security Act shall include a
description of the organization and functions of the single State agency
and an organizational chart of the agency.
(b) Where applicable, a State plan for financial assistance under
title I, IV-A, X, XIV, or XVI (AABD) of the act shall identify the
organizational unit within the State agency which is responsible for
operation of the plan and shall include a description of its
organization and functions and an organizational chart of the unit.
[45 FR 56685, Aug. 25, 1980]
Sec. 205.120 Statewide operation.
(a) State plan requirements. A State plan for financial assistance
under title I, IV-A, X, XIV, or XVI (AABD) of the Social Security Act
must provide that:
(1) It shall be in operation, through a system of local offices, on
a statewide basis in accordance with equitable standards for assistance
and administration that are mandatory throughout the State;
[[Page 38]]
(2) If administered by political subdivisions of the State, the plan
will be mandatory on such political subdivisions;
(3) The State agency will assure that the plan is continuously in
operation in all local offices or agencies through:
(i) Methods for informing staff of State policies, standards,
procedures and instructions; and
(ii) Regular planned examination and evaluation of operations in
local offices by regularly assigned State staff, including regular
visits by such staff; and through reports, controls, or other necessary
methods.
(b) [Reserved]
[39 FR 16971, May 10, 1974, as amended at 44 FR 17942, Mar. 23, 1979; 45
FR 56686, Aug. 25, 1980]
Sec. 205.130 State financial participation.
State plan requirements:
(a) A State plan for financial assistance under title I, IV-A, X,
XIV, or XVI (AABD) of the Social Security Act must provide that:
(1) State (as distinguished from local) funds will be used in both
assistance and administration; and
(2) State and Federal funds will be apportioned among the political
subdivisions of the State on a basis consistent with equitable treatment
of individuals in similar circumstances throughout the State.
(b) A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the
Act must provide further that State funds will be used to pay a
substantial part of the total costs of the assistance programs.
[45 FR 56686, Aug. 25, 1980]
Sec. 205.150 Cost allocation.
A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the
Social Security Act must provide that the State agency will have an
approved cost allocation plan on file with the Department in accordance
with the requirements contained in subpart E of 45 CFR part 95. Subpart
E also sets forth the effect on FFP if the requirements contained in
that subpart are not met.
[47 FR 17508, Apr. 23, 1982]
Sec. 205.160 Equipment--Federal financial participation.
Claims for Federal financial participation in the cost of equipment
for the cash assistance programs under titles I, IV-A, X, XIV, XVI
[AABD] and for the separate administrative unit established under
section 402(a)(19)(G) of the Social Security Act are to be determined in
accordance with subpart G or 45 CFR part 95. Requirements concerning the
management and disposition of equipment under these titles are also
prescribed in subpart G of 45 CFR part 95.
[47 FR 41576, Sept. 21, 1982]
Sec. 205.170 State standards for office space, equipment, and facilities.
State plan requirements: A State plan for financial assistance under
title I, IV-A, X, XIV, or XVI(AABD) of the Social Security Act must
provide that:
(a) The State agency will establish and maintain standards for
office space, equipment, and facilities that will adequately and
effectively meet program and staff needs. Under this requirement,
offices must be well marked and clearly identifiable in the community as
a public service.
(b) The State agency will assure that the standards are continuously
in effect in all State and local offices or agencies, including agency
suboffices, and special centers through:
(1) Making information about the standards available to State and
local staff and other appropriate persons;
(2) Regular planned evaluation of housing and facilities by
regularly assigned staff through visits, reports, controls and other
necessary methods;
(3) Methods for enforcement when necessary to secure compliance with
State standards.
[36 FR 3862, Feb. 27, 1971, as amended at 45 FR 56686, Aug. 25, 1980]
Sec. 205.190 Standard-setting authority for institutions.
(a) State plan requirements. If a State plan for financial
assistance under title I, X, XIV, or XVI(AABD) of the Social Security
Act includes aid or assistance to individuals in institutions as defined
in Sec. 233.60(b) (1) and (2) of this chapter the plan must:
[[Page 39]]
(1) Provide for the designation of a State authority or authorities
which shall be responsible for establishing and maintaining standards
for such institutions;
(2) Provide that the State agency will keep on file and make
available to FSA, OFA upon request:
(i) A listing of the types or kinds of institutions in which an
individual may receive financial assistance;
(ii) A record naming the State authority(ies) responsible for
establishing and maintaining standards for such types of institutions;
(iii) The standards to be utilized by such State authority(ies) for
approval or licensing of institutions including, to the extent
applicable, standards related to the following factors:
(a) Health (dietary standards and accident prevention);
(b) Humane treatment;
(c) Sanitation;
(d) Types of construction;
(e) Physical facilities, including space and accommodations per
person;
(f) Fire and safety,
(g) Staffing, in number and qualifications, related to the purposes
and scope of services of the institution;
(h) Resident records;
(i) Admission procedures;
(j) Administrative and fiscal records;
(k) The control by the individual, or his guardian or protective
payee, of the individual's personal affairs.
(3) Provide for cooperative arrangements with the standard-setting
authority(ies) in the development of standards directed toward assuring
adequate quality of care; in upgrading of institutional programs and
practice; in actions necessary to close institutions that mistreat or
are hazardous to the safety of the patients; and in planning so that
institutions may be geographically located in accordance with need.
(b) Federal financial participation. (1) Federal financial
participation is available in staff and related costs of the State or
local agency that are necessary to discharge the responsibilities of the
State agency under this section, including such costs for staff:
(i) Participating with other agencies and community groups in
activities to set up the authority(ies) and to advise on the formulation
of policy for the establishment and maintenance of standards;
(ii) On loan for a time limited period to work with the standard-
setting authority(ies) in upgrading institutional care;
(iii) Engaged in the function of coordination in States where there
is more than one authority; and
(iv) Engaged in adjusting complaints and making reports and
recommendations to the standard-setting authority(ies) on conditions
which appear to be in violation of such standards.
(2) Federal financial participation is not available in the costs
incurred by the standard-setting authority(ies) in establishing and
maintaining standards for institutions.
[36 FR 3862, Feb. 27, 1971, as amended at 45 FR 56686, Aug. 25, 1980; 53
FR 36580, Sept. 21, 1988]
PART 206_APPLICATION, DETERMINATION OF ELIGIBILITY AND FURNISHING ASSISTANCE_PUBLIC ASSISTANCE PROGRAMS--Table of Contents
Authority: Sections 402 and 1102 of the Social Security Act (42
U.S.C. 602 and 1302) and Pub. L. No. 97-248, 96 Stat. 324, and Pub. L.
No. 99-603, 100 Stat. 3359.
Sec. 206.10 Application, determination of eligibility and furnishing of assistance.
(a) State plan requirements. A State plan under title I, IV-A, X,
XIV, or XVI(AABD), of that Social Security Act shall provide that:
(1) Each individual wishing to do so shall have the opportunity to
apply for assistance under the plan without delay. Under this
requirement:
(i) Each individual may apply under whichever of the State plan
plans he chooses;
(ii) The agency shall require a written application, signed under a
penalty of perjury, on a form prescribed by the State agency, from the
applicant himself, or his authorized representative, or, where the
applicant is incompetent or incapacitated, someone acting responsibly
for him. When an individual is required to be included in an existing
assistance unit pursuant to paragraph
[[Page 40]]
(a)(1)(vii), such individual will be considered to be included in the
application, as of the date he is required to be included in the
assistance unit;
(iii) An applicant may be assisted, if he so desires, by an
individual(s) of his choice (who need not be a lawyer) in the various
aspects of the application process and the redetermination of
eligibility and may be accompanied by such individual(s) in contacts
with the agency and when so accompanied may also be represented by them.
(iv)-(v) [Reserved]
(vi) Every recipient in a State which provides a supplemental
payment under Sec. 233.27 of this chapter shall have an opportunity to
request that payment without delay.
(vii) For AFDC only, in order for the family to be eligible, an
application with respect to a dependent child must also include, if
living in the same household and otherwise eligible for assistance:
(A) Any natural or adoptive parent, or stepparent (in the case of
States with laws of general applicability); and
(B) Any blood-related or adoptive brother or sister; Exception:
needs and income of disqualified alien siblings, pursuant to Sec.
233.50(c), are not considered in determining the eligibility and payment
of an otherwise eligible dependent child.
(2)(i) Applicants shall be informed about the eligibility
requirements and their rights and obligations under the program. Under
this requirement individuals are given information in written form, and
orally as appropriate, about coverage, conditions of eligibility, scope
of the program, and related services available, and the rights and
responsibilities of applicants for and recipients of assistance.
Specifically developed bulletins or pamphlets explaining the rules
regarding eligibility and appeals in simple, understandable terms are
publicized and available in quantity.
(ii) Procedures shall be adopted which are designed to assure that
recipients make timely and accurate reports of any change in
circumstances which may affect their eligibility or the amount of
assistance.
(iii) All applicants for and recipients of assistance shall be
notified in writing at the time of application and on redetermination
that eligibility and income information will be regularly requested from
agencies specified in Sec. 205.55 and will be used to aid in
determining their eligibility for assistance.
(3) A decision shall be made promptly on applications, pursuant to
reasonable State-established time standards not in excess of:
(i) 45 days for OAA, AFDC, AB, AABD (for aged and blind); and
(ii) 60 days for APTD, AABD (for disabled). Under this requirement,
the applicant is informed of the agency's time standard in acting on
applications which covers the time from date of application under the
State plan to the date that the assistance check, or notification of
denial of assistance or change of award is mailed to the applicant or
recipient. The State's time standards apply except in unusual
circumstances (e.g., where the agency cannot reach a decision because of
failure or delay on the part of the applicant or an examining physician,
or because of some administrative or other emergency that could not be
controlled by the agency), in which instances the case record shows the
cause for the delay. The agency's standards of promptness for acting on
applications or redetermining eligibility shall not be used as a waiting
period before granting aid, or as a basis for denial of an application
or for terminating assistance.
(4) Adequate notice shall be sent to applicants and recipients to
indicate that assistance has been authorized (including the amount of
financial assistance) or that it has been denied or terminated. Under
this requirement, adequate notice means a written notice that contains a
statement of the action taken, and the reasons for and specific
regulations supporting such action, and an explanation of the
individual's right to request a hearing.
(5)(i) Financial assistance and medical care and services included
in the plan shall be furnished promptly to eligible individuals without
any delay attributable to the agency's administrative process, and shall
be continued regularly to all eligible individuals until they are found
to be ineligible. Under this requirement there must be
[[Page 41]]
arrangements to assist applicants and recipients in obtaining medical
care and services in emergency situations on a 24-hour basis, 7 days a
week.
(ii) Assistance will not be denied, delayed, or discontinued pending
receipt of income or other information requested under Sec. 205.55, if
other evidence establishes the individual's eligibility for assistance.
(6) Assistance shall begin as specified in the State plan, which:
(i) For financial assistance.
(A) Must be no later than:
(1) The date of authorization of payment, or
(2) Thirty days in OAA, AFDC, AB, and AABD (as to the aged and
blind), and 60 days in APTD and AABD (as to the disabled), from the date
of receipt of a signed and completed application form, whichever is
earlier: Provided, That the individuals then met all the eligibility
conditions, and
(B) For purposes of Federal financial participation in OAA, AB,
APTD, and AABD, may be as early as the first of the month in which an
application has been received and the individual meets all the
eligibility conditions; and
(C) In AFDC, for purposes of Federal financial participation, may be
as early as the date of application provided that the assistance unit
meets all the eligibility conditions; and
(D) In AFDC, States that pay for the month of application must
prorate the payment for that month by multiplying the amount payable if
payment were made for the entire month including special needs in
accordance with Sec. 233.34 by the ratio of the days in the month
including and following the date of application (or, at State option,
the date of authorization of payment) to the total number of days in
such month. The State plan may provide for using a standard 30-day month
to determine the prorated amount.
(7) In cases of proposed action to terminate, discontinue, suspend
or reduce assistance, the agency shall give timely and adequate notice.
Such notice shall comply with the provisions of Sec. 205.10 of this
chapter.
(8) Each decision regarding eligibility or ineligibility will be
supported by facts in the applicant's or recipient's case record. Under
this requirement each application is disposed of by a finding of
eligibility or ineligibility unless:
(i) The applicant voluntarily withdraws his application, and there
is an entry in the case record that a notice has been sent to confirm
the applicant's notification to the agency that he does not desire to
pursue his application; or
(ii) There is an entry in the case record that the application has
been disposed of because the applicant died or could not be located.
(9) Where an individual has been determined to be eligible,
eligibility will be reconsidered or redetermined:
(i) When required on the basis of information the agency has
obtained previously about anticipated changes in the individual's
situation;
(ii) Promptly, after a report is obtained which indicates changes in
the individual's circumstances that may affect the amount of assistance
to which he is entitled or may make him ineligible; and
(iii) Periodically, within agency established time standards, but
not less frequently than every 12 months in OAA, AB, APTD, and AABD, on
eligibility factors subject to change. For recipients of AFDC, all
factors of eligibility will be redetermined at least every 6 months
except in the case of monthly reporting cases or cases covered by an
approved error-prone profiling system as specified in paragraph
(a)(9)(iv) of this section. Under the AFDC program, at least one face-
to-face redetermination must be conducted in each case once in every 12
months.
(iv) In accordance with paragraph (a)(9)(iii) of this section, under
an alternative redetermination plan based on error-prone profiling,
which has been approved by the Secretary, and includes:
(A) A description of the statistical methodology used to develop the
error-prone profile system upon which the redetermination schedule is
based;
(B) The criteria to be used to vary the scope of review and to
assign different types of cases; and
(C) A detailed outline of the evaluation system, including
provisions for necessary changes in the error-prone
[[Page 42]]
output, such as types of cases, types of errors, frequencies of
redeterminations and corrective action.
(10) Standards and methods for determination of eligibility shall be
consistent with the objectives of the programs, and will respect the
rights of individuals under the United States Constitution, the Social
Security Act, title VI of the Civil Rights Act of 1964, and all other
relevant provisions of Federal and State laws.
(11) [Reserved]
(12) The State agency shall establish and maintain methods by which
it shall be kept currently informed about local agencies' adherence to
the State plan provisions and to the State agency's procedural
requirements for determining eligibility, and it shall take corrective
action when necessary.
(b) Definitions. For purposes of this section:
(1) Applicant is a person who has, directly, or through his
authorized representative, or where incompetent or incapacitated,
through someone acting responsibly for him, made application for public
assistance from the agency administering the program, and whose
application has not been terminated.
(2) Application is the action by which an individual indicates in
writing to the agency administering public assistance (on a form
prescribed by the State agency) his desire to receive assistance. The
relative with whom a child is living or will live ordinarily makes
application for the child for AFDC. An application is distinguished from
an inquiry, which is simply a request for information about eligibility
requirements for public assistance. Such inquiry may be followed by an
application. When an individual is required to be included in an
existing assistance unit pursuant to paragraph (a)(1)(vii), such
individual will be considered to be included in the application, as of
the date he is required to be included in the assistance unit.
(3) Date of Application is the date on which the action described in
paragraph (b)(2) of this section occurs.
(4) Redetermination is a review of factors affecting AFDC
eligibility and payment amount; e.g. continued absence, income
(including child and spousal support), etc.
(5) Assistance Unit is the group of individuals whose income,
resources and needs are considered as a unit for purposes of determining
eligibility and the amount of payment.
[48 FR 28407, June 21, 1983 as amended at 49 FR 35599, Sept. 10, 1984;
51 FR 7217, Feb. 28, 1986; 51 FR 9203, Mar. 18, 1986; 52 FR 48689, Dec.
24, 1987; 53 FR 30433, Aug. 12, 1988; 57 FR 30157, July 8, 1992]
PART 211_CARE AND TREATMENT OF MENTALLY ILL NATIONALS OF THE UNITED STATES, RETURNED FROM FOREIGN COUNTRIES--Table of Contents
Sec.
211.1 General definitions.
211.2 General.
211.3 Certificates.
211.4 Notification to legal guardian, spouse, next of kin, or interested
persons.
211.5 Action under State law; appointment of guardian.
211.6 Reception; temporary care, treatment, and assistance.
211.7 Transfer and release of eligible person.
211.8 Continuing hospitalization.
211.9 Examination and reexamination.
211.10 Termination of hospitalization.
211.11 Request for release from hospitalization.
211.12 Federal payments.
211.13 Financial responsibility of the eligible person; collections,
compromise, or waiver of payment.
211.14 Disclosure of information.
211.15 Nondiscrimination.
Authority: Secs. 1-11, 74 Stat. 308-310; 24 U.S.C. 321-329.
Source: 39 FR 26546, July 19, 1974, unless otherwise noted.
Sec. 211.1 General definitions.
When used in this part:
(a) Act means Pub. L. 86-571, approved July 5, 1960, 74 Stat. 308,
entitled ``An Act to provide for the hospitalization, at Saint
Elizabeths Hospital in the District of Columbia or elsewhere, of certain
nationals of the United States adjudged insane or otherwise found
mentally ill in foreign countries, and for other purposes'';
(b) The term Secretary means the Secretary of Health and Human
Services;
(c) The term Department means the Department of Health and Human
Services;
[[Page 43]]
(d) The term Administrator means the Administrator, Family Support
Administration, Department of Health and Human Services;
(e) The term eligible person means an individual with respect to
whom the certificates referred to in Sec. 211.3 are furnished to the
Administrator in connection with the reception of an individual arriving
from a foreign country;
(f) The term Public Health Service means the Public Health Service
in the Department of Health and Human Services;
(g) The term agency means an appropriate State or local public or
nonprofit agency with which the Administrator has entered into
arrangements for the provision of care, treatment, and assistance
pursuant to the Act;
(h) The term State includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, and Guam;
(i) The term residence means residence as determined under the
applicable law or regulations of a State or political subdivision for
the purpose of determining the eligibility of an individual for
hospitalization in a public mental hospital;
(j) The term legal guardian means a guardian, appointed by a court,
whose powers, duties, and responsibilities include the powers, duties,
and responsibilities of guardianship of the person.
[39 FR 26546, July 19, 1974, as amended at 53 FR 36580, Sept. 21, 1988]
Sec. 211.2 General.
The Administrator shall make suitable arrangements with agencies to
the end that any eligible person will be received, upon request of the
Secretary of State, at the port of entry or debarkation upon arrival in
the United States from a foreign country and be provided, to the extent
necessary, with temporary care, treatment, and assistance, pending
transfer and release or hospitalization pursuant to the Act. The
Administrator shall also make suitable arrangements with appropriate
divisions of the Public Health Service, with Saint Elizabeths Hospital
in the District of Columbia, with Federal hospitals outside of the
Department, or with other public or private hospitals to provide the
eligible person with care and treatment in a hospital. The Administrator
shall maintain a roster setting forth the name and address of each
eligible person currently receiving care and treatment, or assistance,
pursuant to the Act.
Sec. 211.3 Certificates.
The following certificates are necessary to establish that an
individual is an eligible person:
(a) Certificates as to nationality. A certificate issued by an
authorized official of the Department of State, stating that the
individual is a national of the United States.
(b) Certificate as to mental condition. Either (1) a certificate
obtained or transmitted by an authorized official of the Department of
State that the individual has been legally adjudged insane in a named
foreign country; or (2) a certificate of an appropriate authority or
person stating that at the time of such certification the individual was
in a named foreign country and was in need of care and treatment in a
mental hospital. A statement shall, if possible, be incorporated into or
attached to the certificate furnished under this paragraph setting forth
all available medical and other pertinent information concerning the
individual.
(c) Appropriate authority or person. For the purpose of paragraph
(b)(2) of this section a medical officer of the Public Health Service or
of another agency of the United States, or a medical practitioner
legally authorized to provide care or treatment of mentally ill persons
in the foreign country, is an ``appropriate authority or person,'' and
shall be so identified in his execution of the certificate. If such a
medical officer or practitioner is unavailable, an authorized official
of the Department of State may serve as an ``appropriate authority or
person,'' and shall, in the execution of the certificate, identify
himself as serving as such person due to the unavailability of a
suitable medical officer or practitioner.
Sec. 211.4 Notification to legal guardian, spouse, next of kin, or interested persons.
(a) Whenever an eligible person arrives in the United States from a
foreign country, or when such person is
[[Page 44]]
transferred from one State to another, the Administrator shall, upon
such arrival or transfer (or in advance thereof, if possible), provide
for notification of his legal guardian, or in the absence of such a
guardian, of his spouse or next of kin, or in the absence of any of
these, of one or more interested persons, if known.
(b) Whenever an eligible person is admitted to a hospital pursuant
to the Act, the Administrator shall provide for immediate notification
of his legal guardian, spouse, or next of kin, if known.
Sec. 211.5 Action under State law; appointment of guardian.
Whenever an eligible person is incapable of giving his consent to
care and treatment in a hospital, either because of his mental condition
or because he is a minor, the agency will take appropriate action under
State law, including, if necessary, procuring the appointment of a legal
guardian, to ensure the proper planning for and provision of such care
and treatment.
Sec. 211.6 Reception; temporary care, treatment, and assistance.
(a) Reception. The agency will meet the eligible person at the port
of entry or debarkation, will arrange for appropriate medical
examination, and will plan with him, in cooperation with his legal
guardian, or, in the absence of such a guardian, with other interested
persons, if any, for needed temporary care and treatment.
(b) Temporary care, treatment, and assistance. The agency will
provide for temporary care, treatment, and assistance, as reasonably
required for the health and welfare of the eligible person. Such care,
treatment, and assistance may be provided in the form of hospitalization
and other medical and remedial care (including services of necessary
attendants), food and lodging, money, payments, transportation, or other
goods and services. The agency will utilize the Public Health Service
General Hospital nearest to the port of entry or debarkation or any
other suitable public or private hospital, in providing hospitalization
and medical care, including diagnostic service as needed, pending other
appropriate arrangements for serving the eligible person.
Sec. 211.7 Transfer and release of eligible person.
(a) Transfer and release to relative. If at the time of arrival from
a foreign country or any time during temporary or continuing care and
treatment the Administrator finds that the best interests of the
eligible person will be served thereby, and a relative, having been
fully informed of his condition, agrees in writing to assume
responsibility for his care and treatment, the Administrator shall
transfer and release him to such relative. In determining whether his
best interest will be served by such transfer and release, due weight
shall be given to the relationship of the individuals involved, the
financial ability of the relative to provide for such person, and the
accessibility to necessary medical facilities.
(b) Transfer and release to appropriate State authorities, or agency
of the United States. If appropriate arrangements cannot be accomplished
under paragraph (a) of this section, and if no other agency of the
United States is responsible for the care and treatment of the eligible
person, the Administrator shall endeavor to arrange with the appropriate
State mental health authorities of the eligible person's State of
residence or legal domicile, if any, for the assumption of
responsibility for the care and treatment of the eligible person by such
authorities and shall, upon the making of such arrangements in writing,
transfer and release him to such authorities. If any other agency of the
United States is responsible for the care and treatment of the eligible
person, the Administrator shall make arrangements for his transfer and
release to that agency.
Sec. 211.8 Continuing hospitalization.
(a) Authorization and arrangements. In the event that appropriate
arrangements for an eligible person in need of continuing care and
treatment in a hospital cannot be accomplished under Sec. 211.7, or
until such arrangements can be made, care and treatment shall be
provided by the Administrator in Saint Elizabeths Hospital in the
District of Columbia, in an appropriate Public
[[Page 45]]
Health Service Hospital, or in such other suitable public or private
hospital as the Administrator determines is in the best interests of
such person.
(b) Transfer to other hospital. At any time during continuing
hospitalization, when the Administrator deems it to be in the interest
of the eligible person or of the hospital affected, the Administrator
shall authorize the transfer of such person from one hospital to another
and, where necessary to that end, the Administrator shall authorize the
initiation of judicial proceedings for the purpose of obtaining a
commitment of such person to the Secretary.
(c) Place of hospitalization. In determining the placement or
transfer of an eligible person for purposes of hospitalization, due
weight shall be given to such factors as the location of the eligible
person's legal guardian or family, the character of his illness and the
probable duration thereof, and the facilities of the hospital to provide
care and treatment for the particular health needs of such person.
Sec. 211.9 Examination and reexamination.
Following admission of an eligible person to a hospital for
temporary or continuing care and treatment, he shall be examined by
qualified members of the medical staff as soon as practicable, but not
later than the fifth day after his admission. Each such person shall be
reexamined at least once within each six month period beginning with the
month following the month in which he was first examined.
Sec. 211.10 Termination of hospitalization.
(a) Discharge or conditional release. If, following an examination,
the head of the hospital finds that the eligible person hospitalized for
mental illness (whether or not pursuant to a judicial commitment) is not
in need of such hospitalization, he shall be discharged. In the case
where hospitalization was pursuant to a judicial commitment, the head of
the hospital may, in accordance with laws governing hospitalization for
mental illness as may be in force and generally applicable in the State
in which the hospital is located, conditionally release him if he finds
that this is in his best interests.
(b) Notification to committing court. In the case of any person
hospitalized under Sec. 211.8 who has been judicially committed to the
custody of the Secretary, the Secretary will notify the committing court
in writing of the discharge or conditional release of such person under
this section or of his transfer and release under Sec. 211.7.
Sec. 211.11 Request for release from hospitalization.
If an eligible person who is hospitalized pursuant to the Act, or
his legal guardian, spouse, or adult next of kin, requests his release,
such request shall be granted by the Administrator if his best interests
will be served thereby, or by the head of the hospital if he is found
not to be in need of hospitalization by reason of mental illness. The
right of the administrator or the head of the hospital, to refuse such
request and to detain him for care and treatment shall be determined in
accordance with laws governing the detention, for care and treatment, of
persons alleged to be mentally ill as may be in force and applicable
generally in the State in which such hospital is located, but in no
event shall the patient be detained more than forty-eight hours
(excluding any period of time falling on a Sunday or a legal holiday
observed by the courts of the State in which such hospital is located)
after the receipt of such request unless within such time (a) judicial
proceedings for such hospitalization are commenced or (b) a judicial
extension of such time is obtained, for a period of not more than five
days, for the commencement of such proceedings.
Sec. 211.12 Federal payments.
The arrangements made by the Administrator with an agency or
hospital for carrying out the purposes of the Act shall provide for
payments to such agency or hospital, either in advance or by way of
reimbursement, of the costs of reception, temporary care, treatment, and
assistance, continuing
[[Page 46]]
care and treatment, and transportation, pursuant to the Act, and
payments for other expenditures necessarily and reasonably related to
providing the same. Such arrangements shall include the methods and
procedures for determining the amounts of the advances or
reimbursements, and for remittance and adjustment thereof.
Sec. 211.13 Financial responsibility of the eligible person; collections, compromise, or waiver of payment.
(a) For temporary care and treatment. If an eligible person
receiving temporary care, treatment, and assistance, pursuant to the
Act, has financial resources available to pay all or part of the costs
of such care, the Administrator shall require him to pay for such costs,
either in advance or by way of reimbursement, unless in his judgment it
would be inequitable or impracticable to require such payment.
(b) For continuing care and treatment. Any eligible person receiving
continuing care and treatment in a hospital, or his estate, shall be
liable to pay or contribute toward the payment of the costs or charges
therefor, to the same extent as such person would, if a resident of the
District of Columbia, be liable to pay, under the laws of the District
of Columbia, for his care and maintenance in a hospital for the mentally
ill in that jurisdiction.
(c) Collections, compromise, or waiver of payment. The Administrator
may, in his discretion, where in his judgment substantial justice will
be best served thereby or the probable recovery will not warrant the
expense of collection, compromise, or waive the whole or any portion of,
any claim for continuing care and treatment, and assistance, and in the
process of arriving at such decision, the Administrator may make or
cause to be made such investigations as may be necessary to determine
the ability of the patient to pay or contribute toward the cost of his
continuing care and treatment in a hospital.
Sec. 211.14 Disclosure of information.
(a) No disclosure of any information of a personal and private
nature with respect to an individual obtained at any time by any person,
organization, or institution in the course of discharging the duties of
the Secretary under the Act shall be made except insofar:
(1) As the individual or his legal guardian, if any (or, if he is a
minor, his parent or legal guardian), shall consent;
(2) As disclosure may be necessary to carry out any functions of the
Secretary under the Act;
(3) As disclosure may be directed by the order of a court of
competent jurisdiction;
(4) As disclosure may be necessary to carry out any functions of any
agency of the United States which are related to the return of the
individual from a foreign country, or his entry into the United States;
or
(5) As expressly authorized by the Administrator.
(b) An agreement made with an agency or hospital for care,
treatment, and assistance pursuant to the Act shall provide that no
disclosure will be made of any information of a personal and private
nature received by such agency or hospital in the course of discharging
the duties under such agreement except as is provided therein, or is
otherwise specifically authorized by the Administrator.
(c) Nothing in this section shall preclude disclosure, upon proper
inquiry, of information as to the presence of an eligible person in a
hospital, or as to his general condition and progress.
Sec. 211.15 Nondiscrimination.
(a) No eligible person shall, on the ground of race, color, or
national origin, be excluded from participation, be denied any benefits,
or otherwise be subjected to discrimination of any nature or form in the
provision of any benefits, under the Act.
(b) The prohibition in paragraph (a) of this section precludes
discrimination either in the selection of individuals to receive the
benefits, in the scope of benefits, or in the manner of providing them.
It extends to all facilities and services provided by the Administrator
or an agency to an individual, and to the arrangements and the
procedures under this part relating thereto, in connection with
reception,
[[Page 47]]
temporary care, treatment, and assistance, and continuing
hospitalization under the Act.
PART 212_ASSISTANCE FOR UNITED STATES CITIZENS RETURNED FROM FOREIGN COUNTRIES--Table of Contents
Sec.
212.1 General definitions.
212.2 General.
212.3 Eligible person.
212.4 Reception; initial determination, provisions of temporary
assistance.
212.5 Periodic review and redetermination; termination of temporary
assistance.
212.6 Duty to report.
212.7 Repayment to the United States.
212.8 Federal payments.
212.9 Disclosure of information.
212.10 Nondiscrimination.
Authority: Sec. 302, 75 Stat. 142, sec. 1102, 49 Stat. 647; 42
U.S.C. 1313, 1302.
Source: 39 FR 26548, July 19, 1974, unless otherwise noted.
Sec. 212.1 General definitions.
When used in this part:
(a) Act means section 1113 of the Social Security Act, as amended;
(b) The term Secretary means the Secretary of Health and Human
Services;
(c) The term Department means the Department of Health and Human
Services;
(d) The term Administration means the Administration for Children
and Families, Department of Health and Human Services;
(e) The term Assistant Secretary means the Assistant Secretary for
Children and Families;
(f) The term eligible person means an individual with respect to
whom the conditions in Sec. 212.3 are met;
(g) The term State includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, and Guam;
(h) The term United States when used in a geographical sense means
the States;
(i) The term agency means State or local public agency or
organization or national or local private agency or organization with
which the Assistant Secretary has entered into agreement for the
provision of temporary assistance pursuant to the Act;
(j) The term temporary assistance means money payments, medical
care, temporary billeting, transportation, and other goods and services
necessary for the health, or welfare of individuals, including guidance,
counseling, and other welfare services.
[39 FR 26548, July 19, 1974, as amended at 53 FR 36580, Sept. 21, 1988;
60 FR 19864, Apr. 21, 1995]
Sec. 212.2 General.
The Assistant Secretary shall develop plans and make arrangements
for provision of temporary assistance within the United States to any
eligible person, after consultation with appropriate offices of the
Department of State, the Department of Justice, and the Department of
Defense. Temporary assistance shall be provided, to the extent feasible,
in accordance with such plans, as modified from time to time by the
Assistant Secretary. The Assistant Secretary shall enter into agreements
with agencies whose services and facilities are to be utilized for the
purpose of providing temporary assistance pursuant to the Act,
specifying the conditions governing the provision of such assistance and
the manner of payment of the cost of providing therefor.
[39 FR 26548, July 19, 1974, as amended at 60 FR 19864, Apr. 21, 1995]
Sec. 212.3 Eligible person.
In order to establish that an individual is an eligible person, it
must be found that:
(a) He is a citizen of the United States or a dependent of a citizen
of the United States;
(b) A written statement has been transmitted to the Administration
by an authorized official of the Department of State containing
information which identifies him as having returned, or been brought,
from a foreign country to the United States because of the destitution
of the citizen of the United States, or the illness of such citizen or
any of his dependents, or because of war, threat of war, invasion, or
similar crisis. Such statement shall, if possible, incorporate or have
attached thereto, all available pertinent information concerning the
individual.
[[Page 48]]
In case of war, threat of war, invasion, or similar crisis, a
determination by the Department of State that such a condition is the
general cause for the return of citizens of the United States and their
dependents from a particular foreign country, and evidence that an
individual has returned, or, been brought, from such country to the
United States shall be considered sufficient identification of the
reason for his return to, or entry into the United States; and
(c) He is without resources immediately accessible to meet his
needs.
[39 FR 26548, July 19, 1974, as amended at 60 FR 19864, Apr. 21, 1995]
Sec. 212.4 Reception; initial determination, provisions of temporary assistance.
(a) The Administration, or the agency upon notification by the
Administration, will meet individuals identified as provided in Sec.
212.3(b), at the port of entry or debarkation.
(b) The Administration or agency will make findings, setting forth
the pertinent facts and conclusions, and an initial determination,
according to standards established by the Administration, as to whether
an individual is an eligible person.
(c) The Administration or agency will provide temporary assistance
within the United States to an eligible person, according to standards
of need established by the Administration, upon arrival at the port of
entry or debarkation, during transportation to his intermediate and
ultimate destinations, and after arrival at such destinations.
(d) Temporary assistance may be furnished only for 90 days from the
day of arrival of the eligible person in the United States unless he is
handicapped in attaining self-support or self-care for such reasons as
age, disability, or lack of vocational preparation. In such cases
temporary assistance may be extended upon prior authorization by the
Administration for nine additional months.
[39 FR 26548, July 19, 1974, as amended at 40 FR 43218, Sept. 19, 1975;
53 FR 36580, Sept. 21, 1988]
Sec. 212.5 Periodic review and redetermination; termination of temporary assistance.
(a) The Administration or agency will review the situation of each
recipient of temporary assistance at frequent intervals to consider
whether or not circumstances have changed that would require a different
plan for him.
(b) Upon a finding by the Administration or agency that a recipient
of temporary assistance has sufficient resources available to meet his
needs, temporary assistance shall be terminated.
[39 FR 26548, July 19, 1974, as amended at 53 FR 36580, Sept. 21, 1988]
Sec. 212.6 Duty to report.
The eligible person who receives temporary assistance, or the person
who is caring for or otherwise acting on behalf of such eligible person,
shall report promptly to the Administration or agency any event or
circumstance which would cause such assistance to be changed in amount
or terminated.
[39 FR 26548, July 19, 1974, as amended at 53 FR 36580, Sept. 21, 1988]
Sec. 212.7 Repayment to the United States.
(a) An individual who has received temporary assistance shall be
required to repay, in accordance with his ability, any or all of the
cost of such assistance to the United States, except insofar as it is
determined that:
(1) The cost is not readily allocable to such individual;
(2) The probable recovery would be uneconomical or otherwise
impractical;
(3) He does not have, and is not expected within a reasonable time
to have, income and financial resources sufficient for more than
ordinary needs; or
(4) Recovery would be against equity and good conscience.
(b) In determining an individual's resources, any claim which he has
against any individual, trust or estate, partnership, corporation, or
government shall be considered, and assignment to the United States of
such claims shall be taken in appropriate cases.
[[Page 49]]
(c) A determination that an individual is not required to repay the
cost of temporary assistance shall be final and binding, unless such
determination was procured by fraud or misrepresentation of the
individual or some other person, or the individual voluntarily offers to
repay.
(d) A determination that an individual is required to repay any or
all of the cost of temporary assistance may be reconsidered at any time
prior to repayment of the required amount. A further determination shall
be made with respect to his liability to repay the balance of such
amount on the basis of new evidence as to whether (1) he has, or is
expected within a reasonable time to have, income and financial
resources sufficient for more than ordinary needs, or (2) recovery would
be against equity and good conscience.
Sec. 212.8 Federal payments.
(a) The agreement made by the Assistant Secretary with an agency for
carrying out the purposes of the Act shall provide for payment to such
agency, either in advance or by way of reimbursement, of the cost of
temporary assistance provided pursuant to the Act, and payment of the
cost of other expenditures necessarily and reasonably related to
providing the same. Such agreement shall include the cost of other
expenditures necessarily and reasonably related to providing the same.
Such agreement shall include the method for determining such costs, as
well as the methods and procedures for determining the amounts of
advances or reimbursement and for remittance and adjustment thereof.
(b) To receive reimbursements, States, or other agencies, shall
request and receive prior approval from the Assistant Secretary for
administrative expenses incurred in developing or preparing to implement
repatriation plans for groups of eligible persons. Such requests should
include a description of the activities to be undertaken, an estimate of
the expenses and a rationale for the expenditures. In reviewing
requests, the Assistant Secretary will consider the necessity and
reasonableness of the costs. Prior approval is not required for
administrative expenditures incurred by a State in implementing approved
repatriation plans as a result of Federal notification that an
evacuation may be necessary.
[39 FR 26548, July 19, 1974, as amended at 60 FR 19864, Apr. 21, 1995]
Sec. 212.9 Disclosure of information.
(a) No disclosures of any information of a personal and private
nature with respect to an individual obtained at any time by any person,
organization, or institution in the course of discharging the duties of
the Secretary under the Act shall be made except insofar:
(1) As the individual or his legal guardian, if any (or, if he is a
minor, his parent or legal guardian), shall consent;
(2) As disclosure may be necessary to carry out any functions of the
Secretary under the Act;
(3) As disclosure may be necessary to carry out any functions of any
agency of the United States which are related to the return of the
individual from a foreign country, or his entry into the United States;
or
(4) As expressly authorized by the Assistant Secretary.
(b) An agreement made with an agency for the provision of temporary
assistance pursuant to the Act shall provide that no disclosure will be
made of any information of a personal and private nature received by
such agency in the course of discharging the duties under such agreement
except as is provided therein, or is otherwise specifically authorized
by the Assistant Secretary.
[39 FR 26548, July 19, 1974, as amended at 60 FR 19864, Apr. 21, 1995]
Sec. 212.10 Nondiscrimination.
(a) No eligible person shall, on the ground of race, color, or
national origin be excluded from participation, be denied any benefits,
or otherwise be subjected to discrimination of any nature or form in the
provision of any benefits under the Act.
(b) The prohibition in paragraph (a) of this section precludes
discrimination either in the selection of individuals to receive the
benefits, in the scope of benefits, or in the manner of
[[Page 50]]
providing them. It extends to all facilities and services provided by
the Administration or an agency to an individual, and to the
arrangements and the procedures under this part relating thereto, in
connection with reception and temporary assistance under the Act.
[39 FR 26548, July 19, 1974, as amended at 60 FR 19864, Apr. 21, 1995]
PART 213_PRACTICE AND PROCEDURE FOR HEARINGS TO STATES ON CONFORMITY OF PUBLIC ASSISTANCE PLANS TO FEDERAL REQUIREMENTS--Table of Contents
Subpart A_General
Sec.
213.1 Scope of rules.
213.2 Records to be public.
213.3 Use of gender and number.
213.4 Suspension of rules.
213.5 Filing and service of papers.
Subpart B_Preliminary Matters_Notice and Parties
213.11 Notice of hearing or opportunity for hearing.
213.12 Time of hearing.
213.13 Place.
213.14 Issues at hearing.
213.15 Request to participate in hearing.
Subpart C_Hearing Procedures
213.21 Who presides.
213.22 Authority of presiding officer.
213.23 Rights of parties.
213.23a Discovery.
213.24 Evidentiary purpose.
213.25 Evidence.
213.26 Exclusion from hearing for misconduct.
213.27 Unsponsored written material.
213.28 Official transcript.
213.29 Record for decision.
Subpart D_Posthearing Procedures, Decisions
213.31 Posthearing briefs.
213.32 Decisions following hearing.
213.33 Effective date of Administrator's decision.
Authority: Sec. 1102, 49 Stat. 647; 42 U.S.C. 1302.
Source: 36 FR 1454, Jan. 29, 1971, unless otherwise noted.
Subpart A_General
Sec. 213.1 Scope of rules.
(a) The rules of procedure in this part govern the practice for
hearings afforded by the Department to States pursuant to Sec. 201.4 or
Sec. 201.6 (a) or (b) of this chapter, and the practice relating to
decisions upon such hearings. These rules may also be applied to
hearings afforded by the Department to States in other Federal-State
programs for which Federal administrative responsibility has been
delegated to the Service.
(b) Nothing in this part is intended to preclude or limit
negotiations between the Department and the State, whether before,
during, or after the hearing to resolve the issues which are, or
otherwise would be, considered at the hearing. Such negotiations and
resolution of issues are not part of the hearing, and are not governed
by the rules in this part, except as expressly provided herein.
Sec. 213.2 Records to be public.
All pleadings, correspondence, exhibits, transcripts of testimony,
exceptions, briefs, decisions, and other documents filed in the docket
in any proceeding may be inspected and copied in the office of the FSA
Hearing Clerk. Inquiries may be made at the Central Information Center,
Department of Health and Human Services, 330 Independence Avenue SW.,
Washington, DC 20201.
[36 FR 1454, Jan. 29, 1971, as amended at 53 FR 36580, Sept. 21, 1988]
Sec. 213.3 Use of gender and number.
As used in this part, words importing the singular number may extend
and be applied to several persons or things, and vice versa. Words
importing the masculine gender may be applied to females or
organizations.
Sec. 213.4 Suspension of rules.
Upon notice to all parties, the Administrator or the presiding
officer, with respect to matters pending before him and within his
jurisdiction, may modify or waive any rule in this part upon
determination that no party will
[[Page 51]]
be unduly prejudiced and the ends of justice will thereby be served.
Sec. 213.5 Filing and service of papers.
(a) All papers in the proceedings shall be filed with the FSA
Hearing Clerk, in an original and two copies. Originals only of exhibits
and transcripts of testimony need be filed.
(b) All papers in the proceedings shall be served on all parties by
personal delivery or by mail. Service on the party's designated attorney
will be deemed service upon the party.
[36 FR 1454, Jan. 29, 1971, as amended at 53 FR 36580, Sept. 21, 1988]
Subpart B_Preliminary Matters_Notice and Parties
Sec. 213.11 Notice of hearing or opportunity for hearing.
Proceedings are commenced by mailing a notice of hearing or
opportunity for hearing from the Administrator to the State. The notice
shall state the time and place for the hearing, and the issues which
will be considered, and shall be published in the Federal Register.
Sec. 213.12 Time of hearing.
The hearing shall be scheduled not less than 30 days nor more than
60 days after the date notice of the hearing is furnished to the State.
Sec. 213.13 Place.
The hearing shall be held in the city in which the regional office
of the Department is located or in such other place as is fixed by the
Administrator in light of the circumstances of the case, with due regard
for the convenience and necessity of the parties or their
representatives.
Sec. 213.14 Issues at hearing.
(a) The Administrator may, prior to a hearing under Sec. 201.6 (a)
or (b) of this chapter, notify the State in writing of additional issues
which will be considered at the hearing, and such notice shall be
published in the Federal Register. If such notice is furnished to the
State less than 20 days before the date of the hearing, the State or any
other party, at its request, shall be granted a postponement of the
hearing to a date 20 days after such notice was furnished, or such later
date as may be agreed to by the Administrator.
(b) If, as a result of negotiations between the Department and the
State, the submittal of a plan amendment, a change in the State program,
or other actions by the State, any issue is resolved in whole or in
part, but new or modified issues are presented, as specified by the
Administrator, the hearing shall proceed on such new or modified issues.
(c)(1) If at any time, whether prior to, during, or after the
hearing, the Administrator finds that the State has come into compliance
with Federal requirements on any issue, in whole or in part, he shall
remove such issue from the proceedings in whole or in part, as may be
appropriate. If all issues are removed, he shall terminate the hearing.
(2) Prior to the removal of any issue from the hearing, in whole or
in part, the Administrator shall provide all parties other than the
Department and the State (see Sec. 213.15(b)) with the statement of his
intention, and the reasons therefor, and a copy of the proposed State
plan provision on which the State and he have settled, and the parties
shall have opportunity to submit in writing within 15 days, for the
Administrator's consideration and for the record, their views as to, or
any information bearing upon, the merits of the proposed plan provision
and the merits of the Administrator's reasons for removing the issue
from the hearing.
(d) The issues considered at the hearing shall be limited to those
issues of which the State is notified as provided in Sec. 213.11 and
paragraph (a) of this section, and new or modified issues described in
paragraph (b) of this section, and shall not include issues or parts of
issues removed from the proceedings pursuant to paragraph (c) of this
section.
Sec. 213.15 Request to participate in hearing.
(a) The Department and the State are parties to the hearing without
making a specific request to participate.
(b)(1) Other individuals or groups may be recognized as parties, if
the
[[Page 52]]
issues to be considered at the hearing have caused them injury and their
interest is within the zone of interests to be protected by the
governing Federal statute.
(2) Any individual or group wishing to participate as a party shall
file a petition with the FSA Hearing Clerk within 15 days after notice
of the hearing has been published in the Federal Register, and shall
serve a copy on each party of record at that time, in accordance with
Sec. 213.5(b). Such petition shall concisely state (i) petitioner's
interest in the proceeding, (ii) who will appear for petitioner, (iii)
the issues on which petitioner wishes to participate, and (iv) whether
petitioner intends to present witnesses.
(3) Any party may, within 5 days of receipt of such petition, file
comments thereon.
(4) The presiding officer shall promptly determine whether each
petitioner has the requisite interest in the proceedings and shall
permit or deny participation accordingly. Where petitions to participate
as parties are made by individuals or groups with common interests, the
presiding officer may request all such petitioners to designate a single
representative, or he may recognize one or more of such petitioners to
represent all such petitioners. The presiding officer shall give each
petitioner written notice of the decision on his petition, and if the
petition is denied, he shall briefly state the grounds for denial.
(c)(1) Any interested person or organization wishing to participate
as amicus curiae shall file a petition with the FSA Hearing Clerk before
the commencement of the hearing. Such petition shall concisely state (i)
the petitioner's interest in the hearing, (ii) who will represent the
petitioner, and (iii) the issues on which petitioner intends to present
argument. The presiding officer may grant the petition if he finds that
the petitioner has a legitimate interest in the proceedings, that such
participation will not unduly delay the outcome and may contribute
materially to the proper disposition of the issues. An amicus curiae is
not a party but may participate as provided in this paragraph.
(2) An amicus curiae may present a brief oral statement at the
hearing, at the point in the proceedings specified by the presiding
officer. He may submit a written statement of position to the presiding
officer prior to the beginning of a hearing, and shall serve a copy on
each party. He may also submit a brief or written statement at such time
as the parties submit briefs, and shall serve a copy on each party.
[36 FR 1454, Jan. 29, 1971, as amended at 53 FR 36580, Sept. 21, 1988]
Subpart C_Hearing Procedures
Sec. 213.21 Who presides.
(a) The presiding officer at a hearing shall be the Administrator or
his designee.
(b) The designation of the presiding officer shall be in writing. A
copy of the designation shall be served on all parties.
[39 FR 40850, Nov. 21, 1974]
Sec. 213.22 Authority of presiding officer.
(a) The presiding officer shall have the duty to conduct a fair
hearing, to avoid delay, maintain order, and make a record of the
proceedings. He shall have all powers necessary to accomplish these
ends, including, but not limited to, the power to:
(1) Change the date, time, and place of the hearing, upon due notice
to the parties. This includes the power to continue the hearing in whole
or in part. In hearings pursuant to section 1116(a)(2) of the Social
Security Act (see Sec. 201.4 of this chapter), changes of time are
subject to the requirements of the statute.
(2) Hold conferences to settle or simplify the issues in a
proceeding, or to consider other matters that may aid in the expeditious
disposition of the proceeding.
(3) Regulate participation of parties and amici curiae and require
parties and amici curiae to state their position with respect to the
various issues in the proceeding.
(4) Administer oaths and affirmations.
(5) Rule on motions and other procedural items on matters pending
before him including issuance of protective
[[Page 53]]
orders or other relief to a party against whom discovery is sought.
(6) Regulate the course of the hearing and conduct of counsel
therein.
(7) Examine witnesses.
(8) Receive, rule on, exclude or limit evidence or discovery.
(9) Fix the time for filing motions, petitions, briefs, or other
items in matters pending before him.
(10) If the presiding officer is the Administrator, make a final
decision.
(11) If the presiding officer is a hearing examiner, certify the
entire record including his recommended findings and proposed decision
to the Administrator.
(12) Take any action authorized by the rules in this part or in
conformance with the provisions of 5 U.S.C. 551 through 559.
(b) The presiding officer does not have authority to compel by
subpoena the production of witnesses, papers, or other evidence.
(c) If the presiding officer is a hearing examiner, his authority
pertains to the issues of compliance by a State with Federal
requirements which are to be considered at the hearing, and does not
extend to the question of whether, in case of any noncompliance, Federal
payments will not be made in respect to the entire State plan or will be
limited to categories under or parts of the State plan affected by such
noncompliance.
[40 FR 50272, Oct. 29, 1975]
Sec. 213.23 Rights of parties.
All parties may:
(a) Appear by counsel or other authorized representative, in all
hearing proceedings.
(b) Participate in any prehearing conference held by the presiding
officer.
(c) Agree to stipulations as to facts which will be made a part of
the record.
(d) Make opening statements at the hearing.
(e) Present relevant evidence on the issues at the hearing.
(f) Present witnesses who then must be available for cross-
examination by all other parties.
(g) Present oral arguments at the hearing.
(h) Submit written briefs, proposed findings of fact, and proposed
conclusions of law, after the hearing.
Sec. 213.23a Discovery.
The Department and any party named in the notice issued pursuant to
Sec. 213.11 shall have the right to conduct discovery (including
depositions) against opposing parties. Rules 26-37 of the Federal Rules
of Civil Procedures shall apply to such proceedings; there will be no
fixed rule on priority of discovery. Upon written motion, the Presiding
Officer shall promptly rule upon any objection to such discovery action
initiated pursuant to this section. The Presiding Officer shall also
have the power to grant a protective order or relief to any party
against whom discovery is sought and to restrict or control discovery so
as to prevent undue delay in the conduct of the hearing. Upon the
failure of any party to make discovery, the Presiding Officer may, in
his discretion, issue any order and impose any sanction (other than
contempt orders) authorized by Rule 37 of the Federal Rules of Civil
Procedure.
[40 FR 50272, Oct. 29, 1975]
Sec. 213.24 Evidentiary purpose.
The hearing is directed to receiving factual evidence and expert
opinion testimony related to the issues in the proceeding. Argument will
not be received in evidence; rather it should be presented in
statements, memoranda, or briefs, as determined by the presiding
officer. Brief opening statements, which shall be limited to statement
of the party's position and what he intends to prove, may be made at
hearings.
Sec. 213.25 Evidence.
(a) Testimony. Testimony shall be given orally under oath or
affirmation by witnesses at the hearing. Witnesses shall be available at
the hearing for cross-examination by all parties.
(b) Stipulations and exhibits. Two or more parties may agree to
stipulations of fact. Such stipulations, or any exhibit proposed by any
party, shall be exchanged at the prehearing conference or otherwise
prior to the hearing if the presiding officer so requires.
[[Page 54]]
(c) Rules of evidence. Technical rules of evidence shall not apply
to hearings conducted pursuant to this part, but rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to test by cross-examination shall be applied
where reasonably necessary by the presiding officer. A witness may be
cross-examined on any matter material to the proceeding without regard
to the scope of his direct examination. The presiding officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues.
Sec. 213.26 Exclusion from hearing for misconduct.
Disrespectful, disorderly, or contumacious language or contemptuous
conduct, refusal to comply with directions, or continued use of dilatory
tactics by any person at the hearing before a presiding officer shall
constitute grounds for immediate exclusion of such person from the
hearing by the presiding officer.
Sec. 213.27 Unsponsored written material.
Letters expressing views or urging action and other unsponsored
written material regarding matters in issue in a hearing will be placed
in the correspondence section of the docket of the proceeding. These
data are not deemed part of the evidence or record in the hearing.
Sec. 213.28 Official transcript.
The Department will designate the official reporter for all
hearings. The official transcripts of testimony taken, together with any
stipulations, exhibits, briefs, or memoranda of law filed therewith
shall be filed with the Department. Transcripts of testimony in hearings
may be obtained from the official reporter by the parties and the public
at rates not to exceed the maximum rates fixed by the contract between
the Department and the reporter. Upon notice to all parties, the
presiding officer may authorize corrections to the transcript which
involve matters of substance.
Sec. 213.29 Record for decision.
The transcript of testimony, exhibits, and all papers and requests
filed in the proceedings, except the correspondence section of the
docket, including rulings and any recommended or initial decision shall
constitute the exclusive record for decision.
Subpart D_Posthearing Procedures, Decisions
Sec. 213.31 Posthearing briefs.
The presiding officer shall fix the time for filing posthearings
briefs, which may contain proposed findings of fact and conclusions of
law, and, if permitted, reply briefs.
Sec. 213.32 Decisions following hearing.
(a) If the Administrator is the presiding officer, he shall, when
the time for submission of posthearing briefs has expired, issue his
decision within 60 days.
(b)(1) If a hearing examiner is the presiding officer, he shall,
when the time for submission of posthearing briefs has expired, certify
the entire record, including his recommended findings and proposed
decision, to the Administrator. The Administrator shall serve a copy of
the recommended findings and proposed decision upon all parties, and
amici, if any.
(2) Any party may, within 20 days, file with the Administrator
exceptions to the recommended findings and proposed decision and a
supporting brief or statement.
(3) The Administrator shall thereupon review the recommended
decision and, within 60 days of its issuance, issue his own decision.
(c) If the Administrator concludes that a State plan does not comply
with Federal requirements, he shall also, in the case of a hearing
pursuant to Sec. 201.6(a) of this chapter, specify whether further
payments will not be made to the State or whether, in the exercise of
his discretion, payments will be limited to categories under or parts of
the State plan not affected by such noncompliance. The Administrator may
ask the parties for recommendations or
[[Page 55]]
briefs or may hold conferences of the parties on this question.
(d) The decision of the Administrator under this section shall be
the final decision of the Secretary and shall constitute ``final agency
action'' within the meaning of 5 U.S.C. 704 and a ``final
determination'' within the meaning of section 1116(a)(3) of the Act and
Sec. 201.7 of this chapter. The Administrator's decision shall be
promptly served on all parties, and amici, if any.
[36 FR 1454, Jan. 29, 1971, as amended at 36 FR 21520, Nov. 10, 1971]
Sec. 213.33 Effective date of Administrator's decision.
If, in the case of a hearing pursuant to Sec. 201.6(a) of this
chapter, the Administrator concludes that a State plan does not comply
with Federal requirements, his decision that further payments will not
be made to the State, or payments will be limited to categories under or
parts of the State plan not affected, shall specify the effective date
for the withholding of Federal funds. The effective date shall not be
earlier than the date of the Administrator's decision and shall not be
later than the first day of the next calendar quarter. The provisions of
this section may not be waived pursuant to Sec. 213.4.
PART 225_TRAINING AND USE OF SUBPROFESSIONALS AND VOLUNTEERS--Table of Contents
Sec.
225.1 Definitions.
225.2 State plan requirements.
225.3 Federal financial participation.
Authority: Sec. 1102, 49 Stat. 647; 42 U.S.C. 1302.
Sec. 225.1 Definitions.
(a) The classification of subprofessional staff as community service
aides refers to persons in a variety of positions in the planning,
administration, and delivery of health, social, and rehabilitation
services in which the duties of the position are composed of tasks that
are an integral part of the agency's service responsibilities to people
and that can be performed by persons with less than a college education,
by high school graduates, or by persons with little or no formal
education.
(b) Full-time or part-time employment means that the person is
employed by the agency and his position is incorporated into the regular
staffing pattern of the agency. He is paid a regular wage or salary in
relation to the value of services rendered and time spent on the job.
(c) The term Volunteer describes a person who contributes his
personal service to the community through the agency's human services
program. He is not a replacement or substitute for paid staff but adds
new dimensions to agency services, and symbolizes the community's
concern for the agency's clientele.
(d) Partially paid volunteers means volunteers who are compensated
for expenses incurred in the giving of services. Such payment does not
reflect the value of the services rendered, or the amount of time given
to the agency.
[34 FR 1319, Jan. 28, 1969]
Sec. 225.2 State plan requirements.
The State plan for financial assistance programs under titles I, X,
XIV, or XVI (AABD) of the Social Security Act for Guam, Puerto Rico and
the Virgin Islands or for child welfare services under title IV-B of the
Act must:
(a) Provide for the training and effective use of subprofessional
staff as community service aides through part-time or full-time
employment of persons of low income and, where applicable, of recipients
and for that purpose will provide for:
(1) Such methods of recruitment and selection as will offer
opportunity for full-time or part-time employment of persons of low
income and little or no formal education, including employment of young
and middle aged adults, older persons, and the physically and mentally
disabled, and in the case of a State plan for financial assistance under
title I, X, XIV, or XVI (AABD), of recipients: And will provide that
such subprofessional positions are subject to merit system requirements,
except where special exemption is approved on the basis of a State
alternative plan for recruitment and selection among the disadvantaged
of persons who have the potential ability for
[[Page 56]]
training and job performance to help assure achievement of program
objectives;
(2) An administrative staffing plan to include the range of service
personnel of which subprofessional staff are an integral part;
(3) A career service plan permitting persons to enter employment at
the subprofessional level and, according to their abilities, through
work experience, pre-service and in-service training and educational
leave with pay, progress to positions of increasing responsibility and
reward;
(4) An organized training program, supervision, and supportive
services for subprofessional staff; and
(5) Annual progressive expansion of the plan to assure utilization
of increasing numbers of subprofessional staff as community service
aides, until an appropriate number and proportion of subprofessional
staff to professional staff are achieved to make maximum use of
subprofessionals in program operation.
(b) Provide for the use of nonpaid or partially paid volunteers in
providing services and in assisting any advisory committees established
by the State agency and for that purpose provide for:
(1) A position in which rests responsibility for the development,
organization, and administration of the volunteer program, and for
coordination of the program with related functions;
(2) Methods of recruitment and selection which will assure
participation of volunteers of all income levels in planning capacities
and service provision;
(3) A program for organized training and supervision of such
volunteers;
(4) Meeting the costs incident to volunteer service and assuring
that no individual shall be deprived of the opportunity to serve because
of the expenses involved in such service; and
(5) Annual progressive expansion of the numbers of volunteers
utilized, until the volunteer program is adequate for the achievement of
the agency's service goals.
[34 FR 1320, Jan. 28, 1969, as amended at 41 FR 12015, Mar. 23, 1976; 42
FR 60566, Nov. 28, 1977; 45 FR 56686, Aug. 25, 1980; 51 FR 9204, Mar.
18, 1986]
Sec. 225.3 Federal financial participation.
Under the State plan for financial assistance programs under titles
I, X, XIV, XVI (AABD) or for child welfare services under title IV-B of
the Act, Federal financial participation in expenditures for the
recruitment, selection, training, and employment and other use of
subprofessional staff and volunteers is available at the rates and under
related conditions established for training, services, and other
administrative costs under the respective titles.
[51 FR 9204, Mar. 18, 1986]
PART 233_COVERAGE AND CONDITIONS OF ELIGIBILITY IN FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
Sec.
233.10 General provisions regarding coverage and eligibility.
233.20 Need and amount of assistance.
233.21 Budgeting methods for OAA, AB, APTD, and AABD.
233.22 Determining eligibility under prospective budgeting.
233.23 When assistance shall be paid under retrospective budgeting.
233.24 Retrospective budgeting; determining eligibility and computing
the assistance payment in the initial one or two months.
233.25 Retrospective budgeting; computing the assistance payment after
the initial one or two months.
233.26 Retrospective budgeting; determining eligibility after the
initial one or two months.
233.27 Supplemental payments under retrospective budgeting.
233.28 Monthly reporting.
233.29 How monthly reports are treated and what notices are required.
233.31 Budgeting methods for AFDC.
233.32 Payment and budget months (AFDC).
233.33 Determining eligibility prospectively for all payment months
(AFDC).
233.34 Computing the assistance payment in the initial one or two months
(AFDC).
233.35 Computing the assistance payment under retrospective budgeting
after the initial one or two months (AFDC).
233.36 Monthly reporting (AFDC).
233.37 How monthly reports are treated and what notices are required
(AFDC).
233.38 Waiver of monthly reporting and retrospective budgeting
requirements; AFDC.
233.39 Age.
[[Page 57]]
233.40 Residence.
233.50 Citizenship and alienage.
233.51 Eligibility of sponsored aliens.
233.52 Overpayment to aliens.
233.53 Support and maintenance assistance (including home energy
assistance) in AFDC.
233.60 Institutional status.
233.70 Blindness.
233.80 Disability.
233.90 Factors specific to AFDC.
233.100 Dependent children of unemployed parents.
233.101 Dependent children of unemployed parents.
233.106 Denial of AFDC benefits to strikers.
233.107 Restriction in payment to households headed by a minor parent.
233.110 Foster care maintenance and adoption assistance.
233.145 Expiration of medical assistance programs under titles I, IV-A,
X, XIV and XVI of the Social Security Act.
Authority: 42 U.S.C. 301, 602, 602 (note), 606, 607, 1202, 1302,
1352, and 1382 (note).
Sec. 233.10 General provisions regarding coverage and eligibility.
(a) State plan requirements. A State plan under title I, IV--A, X,
XIV, or XVI, of the Social Security Act must:
(1) Specify the groups of individuals, based on reasonable
classifications, that will be included in the program, and all the
conditions of eligibility that must be met by the individuals in the
groups. The groups selected for inclusion in the plan and the
eligibility conditions imposed must not exclude individuals or groups on
an arbitrary or unreasonable basis, and must not result in inequitable
treatment of individuals or groups in the light of the provisions and
purposes of the public assistance titles of the Social Security Act.
Under this requirement:
(i) A State shall impose each condition of eligibility required by
the Social Security Act; and
(ii) A State may:
(A) Provide more limited public assistance coverage than that
provided by the Act only where the Social Security Act or its
legislative history authorizes more limited coverage;
(B) Impose conditions upon applicants for and recipients of public
assistance which, if not satisfied, result in the denial or termination
of public assistance, if such conditions assist the State in the
efficient administration of its public assistance programs, or further
an independent State welfare policy, and are not inconsistent with the
provisions and purposes of the Social Security Act.
(iii) There must be clarity as to what groups are included in the
plan, and which are within, and which are outside, the scope of Federal
financial participation.
(iv) Eligibility conditions must be applied on a consistent and
equitable basis throughout the State.
(v) A plan under title XVI must have the same eligibility conditions
and other requirements for the aged, blind, and disabled, except as
otherwise specifically required or permitted by the Act.
(vi) Eligibility conditions or agency procedures or methods must not
preclude the opportunity for an individual to apply and obtain a
determination of eligibility or ineligibility.
(vii) Methods of determining eligibility must be consistent with the
objective of assisting all eligible persons to qualify.
(2) Provide that the State agency will establish methods for
identifying the expenditures for assistance for any groups included in
the plan for whom Federal financial participation in assistance may not
be claimed.
(3) In addition, a State plan under title IV-A, X, XIV, or XVI of
the Act, must: Provided that no aid or assistance will be provided under
the plan to an individual with respect to a period for which he is
receiving aid or assistance under a State plan approved under any other
of such titles or under title I of the Act.
(b) Federal financial participation. (1) The provisions which govern
Federal financial participation in assistance payments are set forth in
the Social Security Act, throughout this chapter, and in other policy
issuances of the Secretary. Where indicated, State plan provisions are
prerequisite to Federal financial participation with respect to the
applicable group and payments. State plan provisions on need, the amount
of assistance, and eligibility determine the limits of Federal financial
participation. Federal financial
[[Page 58]]
participation is excluded from assistance payments in which the State
refuses to participate because of the failure of a local authority to
apply such State plan provisions.
(2) The following is a summary statement regarding the groups for
whom Federal financial participation is available. (More detailed
information is given elsewhere.)
(i) OAA--for needy individuals under the plan who are 65 years of
age or older.
(ii) AFDC--for:
(a) Needy children under the plan who are:
(1) Under the age of 18, or age 18 if a full-time student in a
secondary school, or in the equivalent level of vocational or technical
training, and reasonably expected to complete the program before
reaching age 19;
(2) Deprived of parental support or care by reason of the death,
continued absence from the home, or physical or mental incapacity of a
parent, or unemployment of a principal earner, and
(3) Living in the home of a parent or of certain relatives specified
in the Act.
(b) The parent(s) of a dependent child, a caretaker relative (other
than a parent) of a dependent child, and, in certain situations, a
parent's spouse.
(iii) AB--for needy individual's under the plan who are blind.
(iv) APTD--for needy individuals under the plan who are 18 years of
age or older and permanently and totally disabled.
(v) AABD--for needy individuals under the plan who are aged, blind,
or 18 years of age or older and permanently and totally disabled.
(3) Federal financial participation is available in assistance
payments made for the entire month in accordance with the State plan if
the individual was eligible for a portion of the month, provided that
the individual was eligible on the date that the payment was made;
except that where it has been determined that the State agency had
previously denied assistance to which the individual was entitled,
Federal financial participation will be provided in any corrective
payment regardless of whether the individual is eligible on the date
that the corrective payment is made.
(4) Federal financial participation is available in assistance
payments which are continued in accordance with the State plan, for a
temporary period during which the effects of an eligibility condition
are being overcome, e.g., blindness in AB, disability in APTD, physical
or mental incapacity, continued absence of a parent, or unemployment of
a principal earner in AFDC.
(5) Where changed circumstances or a hearing decision makes the
individual ineligible for any assistance, or eligible for a smaller
amount of assistance than was actually paid, Federal financial
participation is available in excess payments to such individuals, for
not more than one month following the month in which the circumstances
changed or the hearing decision was rendered. Federal financial
participation is available where assistance is required to be continued
unadjusted because a hearing has been requested.
[36 FR 3866, Feb. 27, 1971, as amended at 38 FR 8744, Apr. 6, 1973; 39
FR 26912, July 24, 1974; 40 FR 32958, Aug. 5, 1975; 47 FR 5674, Feb. 5,
1982; 47 FR 47828, Oct. 28, 1982; 51 FR 9204, Mar. 18, 1986; 57 FR
30158, July 8, 1992]
Sec. 233.20 Need and amount of assistance.
(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB,
APTD or AABD must, as specified below:
(1) General. (i) Provide that the determination of need and amount
of assistance for all applicants and recipients will be made on an
objective and equitable basis and all types of income will be taken into
consideration in the same way except where otherwise specifically
authorized by Federal statute and
(ii) Provide that the needs, income, and resources of individuals
receiving SSI benefits under title XVI, individuals with respect to whom
Federal foster care payments are made, individuals with respect to whom
State or local foster care payments are made, individuals with respect
to whom Federal adoption assistance payments are made, or individuals
with respect to whom State or local adoption assistance payments are
made, for the period for which such benefits or payments
[[Page 59]]
are received, shall not be included in determining the need and the
amount of the assistance payment of an AFDC assistance unit; except that
the needs, income, and resources of an individual with respect to whom
Federal adoption assistance payments are made, or individuals with
respect to whom State or local adoption assistance payments are made are
included in determining the need and the amount of the assistance
payment for an AFDC assistance unit of which the individual would
otherwise be regarded as a member where the amount of the assistance
payment that the unit would receive would not be reduced by including
the needs, income, and resources of such individual. Under this
requirement, ``individuals receiving SSI benefits under title XVI''
include individuals receiving mandatory or optional State supplementary
payments under section 1616(a) of the Social Security Act or under
section 212 of Public Law 93-66, and ``individuals with respect to whom
Federal foster care payments are made'' means a child with respect to
whom Federal foster care maintenance payments under section 472(b) and
defined in section 475(4)(A) of title IV-E of the Social Security Act
are made, and a child whose costs in a foster family home or child care
institution are covered by the Federal foster care maintenance payments
made with respect to his or her minor parent under sections 472(h) and
475(4)(B) of title IV-E. ``Individuals with respect to whom Federal
adoption assistance payments are made'' means a child who receives
payments made under an approved title IV-E plan based on an adoption
assistance agreement between the State and the adoptive parents of a
child with special needs, pursuant to sections 473 and 475(3) of the
Social Security Act.
(iii) For AFDC, when an individual who is required to be included in
the assistance unit pursuant to Sec. 206.10(a)(1)(vii) is also required
to be included in another assistance unit, those assistance units must
be consolidated, and treated as one assistance unit for purposes of
determining eligibility and the amount of payment.
(iv) For AFDC, when a State learns of an individual who is required
to be included in the assistance unit after the date he or she is
required to be included in the unit, the State must redetermine the
assistance unit's eligibility and payment amount, including the need,
income, and resources of the individual. This redetermination must be
retroactive to the date that the individual was required to be in the
assistance unit either through birth/adoption or by becoming a member of
the household. Any resulting overpayment must be recovered or corrective
payment made pursuant to Sec. 233.20(a)(13).
(v) In determining need and the amount of payment for AFDC, all
income and resources of an individual required to be in the assistance
unit, but subject to sanction under Sec. 250.34 or because of an
intentional program violation under the optional fraud control program
implementing section 416 of the Social Security Act, are considered
available to the assistance unit to the same extent that they would be
if the person were not subject to a sanction. However, the needs of the
sanctioned individual(s) are not considered. In accord with Sec.
250.34(c), if a parent in an AFDC-UP case is sanctioned pursuant to
Sec. 233.100(a)(5), the needs of the second parent are not taken into
account in determining the family's need for assistance and the amount
of the assistance payment unless the second parent is participating in
the JOBS program. An individual required to be in an assistance unit
pursuant to Sec. 206.10(a)(1)(vii) but who fails to cooperate in
meeting a condition of his or her eligibility for assistance is a
sanctioned individual whose needs, income, and resources are treated in
the manner described above.
(2) Standards of assistance. (i) Specify a statewide standard,
expressed in money amounts, to be used in determining (a) the need of
applicants and recipients and (b) the amount of the assistance payment.
(ii) In the AFDC plan, provide that by July 1, 1969, the State's
standard of assistance for the AFDC program will have been adjusted to
reflect fully changes in living costs since such standards were
established, and any maximums that the State imposes on the amount of
aid paid to families will have been proportionately adjusted. In
[[Page 60]]
such adjustment a consolidation of the standard (i.e., combining of
items) may not result in a reduction in the content of the standard. In
the event the State is not able to meet need in full under the adjusted
standard, the State may make ratable reductions in accordance with
paragraph (a)(3)(viii) of this section. Nevertheless, if a State
maintains a system of dollar maximums these maximums must be
proportionately adjusted in relation to the updated standards.
(iii) Provide that the standard will be uniformly applied throughout
the State except as provided under Sec. 239.54.
(iv) Include the method used in determining need and the amount of
the assistance payment. For AFDC, the method must provide for rounding
down to the next lower whole dollar when the result of determining the
standard of need or the payment amount is not a whole dollar. Proration
under Sec. 206.10(a)(6)(i)(D) to determine the amount of payment for
the month of application must occur before rounding to determine the
payment amount for that month.
(v) If the State IV-A agency includes special need items in its
standard:
(A) Describe those that will be recognized and the circumstances
under which they will be included, and
(B) Provide that they will be considered for all applicants and
recipients requiring them; except that:
(1) Under AFDC, work expenses and child care (or care of
incapacitated adults living in the same home and receiving AFDC)
resulting from employment or participation in either a CWEP or an
employment search program cannot be special needs, and
(2) In a State which has a JOBS program under part 250, child care,
transportation, work-related expenses, other work-related supportive
services, and the costs of education (including tuition, books, and
fees) resulting from participation in JOBS (including participation
pursuant to Sec. Sec. 250.46, 250.47, and 250.48) or any other
education or training activity cannot be special needs.
(vi) If the State chooses to establish the need of the individual on
a basis that recognizes, as essential to his well-being, the presence in
the home of other needy individuals, (A) specify the persons whose needs
will be included in the individual's need, and (B) provide that the
decision as to whether any individual will be recognized as essential to
the recipient's well-being shall rest with the recipient.
(vii) [Reserved]
(viii) Provide that the money amount of any need item included in
the standard will not be prorated or otherwise reduced solely because of
the presence in the household of a non-legally responsible individual;
and the agency will not assume any contribution from such individual for
the support of the assistance unit except as provided in paragraphs
(a)(3)(xiv) and (a)(5) of this section and Sec. 233.51 of this part.
(ix) For AFDC, provide that a State shall consider utility payments
made in lieu of any direct rental payment to a landlord or public
housing agency to be shelter costs for applicants or recipients living
in housing assisted under the U.S. Housing Act of 1937, as amended, and
section 236 of the National Housing Act. The amount considered as a
shelter payment shall not exceed the total amount the applicant or
recipient is expected to contribute for the cost of housing as
determined by HUD. Utility payments means only those payments made
directly to a utility company or supplier which are for gas,
electricity, water, heating fuel, sewerage systems, and trash and
garbage collection. Utility payments are made ``in lieu of any direct
rental payment to a landlord or public housing agency'' when, and only
when, the AFDC family pays its entire required contribution at HUD's
direction to one or more utility companies and does not make any direct
payment to the landlord or the public housing agency. Housing covered by
``the U.S. Housing Act of 1937, as amended, and section 236 of the
National Housing Act'' means Department of Housing and Urban Development
assisted housing which includes Indian and public housing, section 8 new
and existing rental housing, and section 236 rental housing.
(3) Income and resources. (i)(A) OAA, AB, APTD, AABD, Specify the
amount and types of real and personal property, including liquid assets,
that may be reserved, i.e., retained to meet the
[[Page 61]]
current and future needs while assistance is received on a continuing
basis. In addition to the home, personal effects, automobile and income
producing property allowed by the agency, the amount of real and
personal property, including liquid assets, that can be reserved for
each individual recipient shall not be in excess of two thousand
dollars. Policies may allow reasonable proportions of income from
businesses or farms to be used to increase capital assets, so that
income may be increased; and (B) in AFDC--The amount of real and
personal property that can be reserved for each assistance unit shall
not be in excess of one thousand dollars equity value (or such lesser
amount as the State specifies in its State plan) excluding only:
(1) The home which is the usual residence of the assistance unit;
(2) One automobile, up to $1,500 of equity value or such lower limit
as the State may specify in the State plan; (any excess equity value
must be applied towards the general resource limit specified in the
State plan);
(3) One burial plot (as defined in the State plan) for each member
of the assistance unit;
(4) Bona fide funeral agreements (as defined and within limits
specified in the State plan) up to a total of $1,500 in equity value or
such lower limit as the State may specify in the State plan for each
member of the assistance unit (any excess equity value must be applied
towards the general resource limit specified in the State plan). This
provision addresses only formal agreements for funeral and burial
expenses such as burial contracts, burial trusts or other funeral
arrangements (generally with licensed funeral directors) and does not
apply to other assets (e.g., passbook bank accounts, simple set-aside of
savings, and cash surrender value of life insurance policies);
(5) Real property for a period of six consecutive months (or, at the
option of the State, nine consecutive months) which the family is making
a good faith effort (as defined in the State plan) to sell, subject to
the following provisions. The family must sign an agreement to dispose
of the property and to repay the amount of aid received during such
period that would not have been paid had the property been sold at the
beginning of such period, but not to exceed the amount of the net
proceeds of the sale. The family has five working days from the date it
realizes cash from the sale of the excess real property to repay the
overpayment; failure to make repayment within this period results in the
cash being considered to be an available resource. If the family becomes
ineligible for AFDC for any other reason during the conditional payment
period while making a good faith effort to sell the property, or fails
to sell the property by the end of the period despite such a good faith
effort, then the amount of the overpayment attributable to the real
property will not be determined and recovery will not be begun until the
property is, in fact, sold. However, if the property was intentionally
sold at less than fair market value so that a good faith effort to sell
it was not made, or if it is otherwise determined that a good faith
effort to sell the property is not being made, the overpayment amount
shall be computed using the fair market value determined at the
beginning of the period. For applicants, the conditional payment period
begins with the first payment month for which all otherwise applicable
eligibility conditions are met and payment is authorized. For recipients
who acquire property while receiving assistance, the period begins with
the payment month in which the recipient receives the property; and
(6) At State option, basic maintenance items essential to day-to-day
living such as clothes, furniture and other similarly essential items of
limited value.
(ii) Provide that in determining need and the amount of the
assistance payment, after all policies governing the reserves and
allowances and disregard or setting aside of income and resources
referred to in this section have been uniformly applied:
(A) In determining need, all remaining income and resources shall be
considered in relation to the State's need standard;
(B) In determining financial eligibility and the amount of the
assistance payment all remaining income (except unemployment
compensation received
[[Page 62]]
by an unemployed principal earner) and, except for AFDC, all resources
may be considered in relation to either the State's need standard or the
State's payment standard. Unemployment compensation received by an
unemployed principal earner shall be considered only by subtracting it
from the amount of the assistance payment after the payment has been
determined under the State's payment method;
(C) States may have policies which provide for allocating an
individual's income for his or her own support if the individual is not
applying for or receiving assistance; for the support of other
individuals living in the same household but not receiving assistance;
and for the support of other individuals living in another household.
Such other individuals are those who are or could be claimed by the
individual as dependents for determining Federal personal income tax
liability, or those he or she is legally obligated to support. No income
may be allocated to meet the needs of an individual who has been
sanctioned under Sec. Sec. 224.51, 232.11(a)(2), 232.12(d), 238.22 or
240.22 or who is required to be included in the assistance unit and has
failed to cooperate. The amount allocated for the individual and the
other individuals who are living in the home must not exceed the State's
need standard amount for a family group of the same composition. The
amount allocated for individuals not living in the home must not exceed
the amount actually paid.
(D) Income after application of disregards, except as provided in
paragraph (a)(3)(xiii) of this section, and resources available for
current use shall be considered. To the extent not inconsistent with any
other provision of this chapter, income and resources are considered
available both when actually available and when the applicant or
recipient has a legal interest in a liquidated sum and has the legal
ability to make such sum available for support and maintenance.
(E) For AFDC, income tax refunds, but such payments shall be
considered as resources; and
(F) When the AFDC assistance unit's income, after applying
applicable disregards, exceeds the State need standard for the family
because of receipt of nonrecurring earned or unearned lump sum income
(including for AFDC, title II and other retroactive monthly benefits,
and payments in the nature of a windfall, e.g., inheritances or lottery
winnings, personal injury and worker compensation awards, to the extent
it is not earmarked and used for the purpose for which it is paid, i.e.,
monies for back medical bills resulting from accidents or injury,
funeral and burial costs, replacement or repair of resources, etc.), the
family will be ineligible for aid for the full number of months derived
by dividing the sum of the lump sum income and other income by the
monthly need standard for a family of that size. Any income remaining
from this calculation is income in the first month following the period
of ineligibility. The period of ineligibility shall begin with the month
of receipt of the nonrecurring income or, at State option, as late as
the corresponding payment month. For purposes of applying the lump sum
provision, family includes all persons whose needs are taken into
account in determining eligibility and the amount of the assistance
payment, and includes solely for determining the income and resources of
a family an individual who must be in a family pursuant to Sec.
206.10(a)(1)(vii) but who does not meet a condition of his or her
eligibility due to a failure to cooperate or is required by law to have
his or her needs excluded from an assistance unit's AFDC grant
calculation due to the failure to perform some action. A State may
shorten the remaining period of ineligibility when: the standard of need
increases and the amount the family would have received also changes
(e.g., situations involving additions to the family unit during the
period of ineligibility of persons who are otherwise eligible for
assistance); the lump sum income or a portion thereof becomes
unavailable to the family for a reason beyond the control of the family;
or the family incurs and pays for medical expenses. If the State chooses
to shorten the period of ineligibility, the State plan shall:
(1) Identify which of the above situations are included;
[[Page 63]]
(2) In the case of situations involving an increase in the need
standard and changes in the amount that should have been paid to the
family, specify the types of circumstances which will be included;
(3) In the case of situations involving the unavailability of the
lump sum income, include a definition of unavailability, and specify
what reasons will be considered beyond the control of the family; and
(4) In the case of situations involving the payment of medical
expenses, specify the types of medical expenses the State will allow to
be offset against the lump sum income.
For purposes of this paragraph (a)(3): Automobile means a passenger car
or other motor vehicle used to provide transportation of persons or
goods. (In AFDC, in appropriate geographic areas, one alternate primary
mode of transportation may be substituted for the automobile); Equity
value means fair market value minus encumbrances (legal debts); Fair
market value means the price an item of a particular make, model, size,
material or condition will sell for on the open market in the geographic
area involved (If a motor vehicle is especially equipped with apparatus
for the handicapped, the apparatus shall not increase the value of the
vehicle); Liquid assets are those properties in the form of cash or
other financial instruments which are convertible to cash and include
savings accounts, checking accounts, stocks, bonds, mutual fund shares,
promissory notes, mortgages, cash value of insurance policies, and
similar properties; Need standard means the money value assigned by the
State to the basic and special needs it recognizes as essential for
applicants and recipients; Payment standard means the amount from which
non-exempt income is subtracted.
(iii) States may prorate income received by individuals employed on
a contractual basis over the period of the contract or may prorate
intermittent income received quarterly, semiannually, or yearly over the
period covered by the income. In OAA, AB, APTD and AABD, they may use
the prorated amount to determine need under Sec. 233.23 and the amount
of the assistance payment under Sec. Sec. 233.24 and 233.25. In AFDC,
they may use the prorated amount to determine need under Sec. 233.33
and the amount of the assistance payment under Sec. Sec. 233.34 and
233.35.
(iv) Provide that in determining the availability of income and
resources, the following will not be included as income:
(A) Except for AFDC, income equal to expenses reasonably
attributable to the earning of income (including earnings from public
service employment);
(B) Grants, such as scholarships, obtained and used under conditions
that preclude their use for current living costs;
(C) Home produce of an applicant or recipient, utilized by him and
his household for their own consumption;
(D) For AFDC, any amounts paid by a State IV-A agency from State-
only funds to meet needs of children receiving AFDC, if the payments are
made under a statutorily-established State program which has been
continuously in effect since before January 1, 1979;
(E) For AFDC, income tax refunds, but such payments shall be
considered as resources; and
(F) At State option, small nonrecurring gifts, such as those for
Christmas, birthdays and graduations, not to exceed $30 per recipient in
any quarter; and
(G) For AFDC, the amount paid to the family by the IV-A agency under
Sec. 232.20(d) or, in a State that treats direct support payments as
income under Sec. 233.20(a)(3)(v)(B), the first $50 received by the
assistance unit which represents a current monthly support obligation or
a voluntary support payment. In no case shall the total amount
disregarded exceed $50 per month per assistance unit.
(v) Provide that agency policies will assure that:
(A) In determining eligibility for an assistance payment, support
payments assigned under Sec. 232.11 of this chapter will be treated in
accordance with Sec. 232.20 and Sec. 232.21 of this chapter; and
(B) In determining the amount of an assistance payment, assigned
support payments retained in violation of Sec. 232.12(b)(4) of this
chapter, will be counted as income to meet need unless the approved IV-A
State plan provides
[[Page 64]]
that such support payments are subject to IV-D recovery under Sec. Sec.
302.31(a)(3) and 303.80 of this title or unless such payments are
sufficient to render the family ineligible as provided at Sec. 232.20
of this chapter.
(vi)(A) In family groups living together, income of the spouse is
considered available for his spouse and income of a parent is considered
available for children under 21, except as provided in paragraphs
(a)(3)(xiv) and (a)(3)(xviii) of this section for AFDC. If an individual
is a spouse or parent who is a recipient of SSI benefits under title
XVI, an individual with respect to whom Federal foster care payments are
made, an individual with respect to whom State or local foster care
payments are made, an individual with respect to whom Federal adoption
assistance payments are made, or an individual with respect to whom
State or local adoption assistance payments are made, then, for the
period for which such benefits or payments are received, his or her
income and resources shall not be counted as income and resources
available to the AFDC unit except that a child receiving adoption
assistance payments will not be excluded if such exclusion would cause
the AFDC benefits of the assistance unit of which the child would
otherwise be considered a member to be reduced. For purposes of this
exception, ``a recipient of SSI benefits under title XVI'' includes a
spouse or parent receiving mandatory or optional State supplementary
payments under section 1616(a) of the Social Security Act or under
section 212 of Public Law 93-66 and an ``individual with respect to whom
Federal foster care payments are made'' means a child with respect to
whom Federal foster care maintenance payments are made under section
472(b) and defined in section 475(4)(A) of the Act, and a child whose
costs in a foster family home or child-care institution are covered by
the foster care maintenance payments made with respect to his or her
minor parent under sections 472(h) and 475(4)(B) of the Act.
``Individuals with respect to whom Federal adoption assistance payments
are made'' means a child who receives payments made under an approved
title IV-E plan based on an adoption assistance agreement between the
State and the adoptive parents of a child with special needs, pursuant
to sections 473 and 475(3) of the Social Security Act.
(B) Income of an alien parent, who is disqualified pursuant to Sec.
233.50(c) is considered available to the otherwise eligible child by
applying the stepparent deeming formula at 45 CFR 233.20(a)(3)(xiv).
(vii) If the State agency establishes policy under which assistance
from other agencies and organizations will not be deducted in
determining the amount of assistance to be paid, provide that no
duplication shall exist between such other assistance and that provided
by the public assistance agency. In such complementary program
relationships, nonduplication shall be assured by provision that such
aid will be considered in relation to: (a) The different purpose for
which the other agency grants aid such as vocational rehabilitation; (b)
the provision of goods and services that are not included in the
statewide standard of the public assistance agency, e.g., a private
agency might provide money for special training for a child or for
medical care when the public assistance agency does not carry this
responsibility; or housing and urban development payments might be
provided to cover moving expenses that are not included in the
assistance standard; or (c) the fact that public assistance funds are
insufficient to meet the total amount of money determined to be needed
in accordance with the statewide standard. In such instances, grants by
other agencies in an amount sufficient to make it possible for the
individual to have the amount of money determined to be needed, in
accordance with the public assistance agency standard, will not
constitute duplication.
(viii) Provide that: (A) Payment will be based on the determination
of the amount of assistance needed; (B) if full individual payments are
precluded by maximums or insufficient funds, adjustments will be made by
methods applied uniformly statewide; (C) in the case of AFDC no payment
of aid shall be made to an assistance unit in any month in which the
amount of aid prior to any adjustments is determined
[[Page 65]]
to be less than $10; and (D) an individual who is denied aid because of
the limitation specified in (C) of this section, or because the payment
amount is determined to be zero as a result of rounding the payment
amount as required by Sec. 233.20(a)(2)(iv), shall be deemed a
recipient of aid for all other purposes except participation in the
Community Work Experience Program.
(ix) Provide that the agency will establish and carry out policies
with reference to applicants' and recipients' potential sources of
income that can be developed to a state of availability.
(x) Provide that the income and resources of individuals receiving
SSI benefits under title XVI, individuals with respect to whom Federal
foster care payments are made, individuals with respect to whom State or
local foster care payments are made, individuals with respect to whom
Federal adoption assistance payments are made, or individuals with
respect to whom State or local adoption assistance payments are made,
for the period for which such benefits or payments are received, shall
not be counted as income and resources of an assistance unit applying
for or receiving assistance under title IV-A; except that a child
receiving adoption assistance payments will not be excluded if such
exclusion would cause the AFDC benefits of the assistance unit of which
the child would otherwise be considered a member to be reduced. Under
this requirement, ``individuals receiving SSI benefits under title XVI''
include individuals receiving mandatory or optional State supplementary
payments under section 1616(a) of the Social Security Act or under
section 212 of Public Law 93-66 and, ``individuals with respect to whom
Federal foster care payments are made'' means a child with respect to
whom Federal foster care maintenance payments are made under section
472(b) and defined in section 475(4)(A) of the Act, and a child whose
costs in a foster family home or child-care institution are covered by
foster care maintenance payments made with respect to his or her minor
parent under sections 472(h) and 475(4)(B) of the Act. ``Individuals
with respect to whom Federal adoption assistance payments are made''
means a child who receives payments made under an approved title IV-E
plan based on an adoption assistance agreement between the State and the
adoptive parents of a child with special needs, pursuant to sections 473
and 475(3) of the Social Security Act.
(xi) In the case of AFDC if the State chooses to count the value of
the food stamp coupons as income, provide that the State plan shall:
(A) Identify the amount for food included in its need and payment
standards for an assistance unit of the same size and composition.
(States which have a flat grant system must estimate the amount based on
historical data or some other justifiable procedure.); and
(B) Specify the amount of such food stamp coupons that it will count
as income. Under this requirement, the amount of food stamp coupons
which a State may count as income may not exceed the amount for food
established in its payment standard for an assistance unit of the same
size and composition.
(xii) In the case of AFDC if the State chooses to count the value of
the governmental rent or housing subsidies as income, provide that the
State plan shall:
(A) Identify the amount for shelter included in its need and payment
standards for an assistance unit of the same size and composition.
(States which have a flat grant system must estimate this amount based
on historical data or some other justifiable procedure.); and
(B) Specify the amount of such housing assistance that it will count
as income. Under this requirement, the amount of such rent or housing
subsidies which a State may count as income may not exceed the amount
for shelter established in its payment standard for assistance unit of
the same size and composition.
(xiii) Under the AFDC plan, provide that no assistance unit is
eligible for aid in any month in which the unit's income (other than the
assistance payment) exceeds 185 percent of the State's need standard
(including special needs) for a family of the same composition
(including special needs), without application of the disregards in
paragraph (a)(11)(i) (except to the
[[Page 66]]
extent provided for under paragraph (a)(3)(xix)), paragraph (a)(11)(ii)
and paragraph (a)(11)(viii) of this section.
(xiv) For AFDC, in States that do not have laws of general
applicability holding the stepparent legally responsible to the same
extent as the natural or adoptive parent, the State agency shall count
as income to the assistance unit the income of the stepparent (i.e., one
who is married, under State law, to the child's parent) of an AFDC child
who is living in the household with the child after applying the
following disregards (exception: if the stepparent is included in the
assistance unit, the disregard under paragraph (a)(11) (i) and (ii) of
this section apply instead:
(A) The first $90 of the gross earned income of the stepparent;
(B) An additional amount for the support of the stepparent and any
other individuals who are living in the home, but whose needs are not
taken into account in making the AFDC eligibility determinations except
for sanctioned individuals or individuals who are required to be
included in the assistance unit but have failed to cooperate and are or
could be claimed by the stepparent as dependents for purposes of
determining his or her Federal personal income tax liability. This
disregarded amount shall equal the State's need standard amount for a
family group of the same composition as the stepparent and those other
individuals described in the preceding sentence;
(C) Amounts actually paid by the stepparent to individuals not
living in the home but who are or could be claimed by him or her as
dependents for purposes of determining his or her Federal personal
income tax liability; and
(D) Payments by such stepparent of alimony or child support with
respect to individuals not living in the household.
(xv) For AFDC, provide for the consideration of the income and
resources of an alien's sponsor who is an individual as provided in
Sec. 233.51.
(xvi) For AFDC, provide that in considering the availability of
income and resources, support and maintenance assistance (including home
energy assistance) will be taken into account in accordance with Sec.
233.53.
(xvii) In the case of AFDC, if the State chooses to disregard
monthly income of any dependent child when the income is derived from
participation in a program under the JTPA, provide that the State plan
shall:
(A) Identify from which programs under the JTPA, income will be
disregarded;
(B) In the case of earned income, specify what amount will be
disregarded, and the length of time the disregard will be applicable (up
to six months per calendar year); and
(C) In the case of unearned income, specify what amount will be
disregarded, and the length of time per calendar year the disregard will
be applicable if any such limit is chosen.
(xviii) For AFDC, in the case of a dependent child whose parent is a
minor under the age of 18 (without regard to school attendance), the
State shall count as income to the assistance unit the income, after
appropriate disregards, of such minor's own parent(s) living in the same
household as the minor and dependent child. The disregards to be applied
are the same as are applied to the income of a stepparent pursuant to
paragraph (a)(3)(xiv) of this section. However, in applying the
disregards, each employed parent will receive the benefit of the work
expense disregard in paragraph (a)(3)(xiv)(A) of this section.
(xix) In the case of AFDC, if the State chooses to disregard monthly
earned income of dependent children who are full-time students in the
determination of whether the family's income exceeds the limit under
Sec. 233.20(a)(3)(xiii) of this section, provide that the State plan
shall specify what amounts will be disregarded and the length of time
the disregard will be applicable (up to six months per calendar year)
except that earned income derived from participation in a program under
the JTPA may only be disregarded under this paragraph, paragraph
(a)(3)(xvii) or a combination of both paragraphs for a total of 6 months
per calendar year.
(xx) In the case of AFDC, if the State chooses to disregard in the
determination of eligibility the monthly earned
[[Page 67]]
income of dependent children applying for AFDC who are full-time
students, provide that the State plan shall:
(A) Specify the amount that will be disregarded, and
(B) Provide that the disregard shall only apply to the extent that
the earned income is also disregarded pursuant to paragraph (a)(3)(xix)
of this section.
(xxi) Provide that the principal of a bona fide loan will not be
counted as income or resources in the determination of eligibility and
the amount of assistance. Interest earned on a loan is counted as
unearned income in the month received and as resources thereafter and
purchases made with a loan are counted as resources. For purposes of
this paragraph, a loan is considered bona fide when it meets objective
and reasonable criteria included in the State plan.
(4) Disregard of income in OAA, AFDC, AB, APTD, OR AABD. (i) For all
programs except AFDC. If the State chooses to disregard income from all
sources before applying other provisions for disregarding or setting
aside income, specify the amount that is first to be disregarded, but
not more than $7.50 per month, of any income of an individual, child or
relative claiming assistance. All income must be included such as social
security or other benefits, earnings, contributions from relatives, or
other income the individual may have.
(ii) Provide that in determining eligibility for public assistance
and the amount of the assistance payment, the following will be
disregarded as income and resources:
(a) In OAA, AB, APTD, and AABD, the value of the coupon allotment
under the Food Stamp Act of 1964 in excess of the amount paid for the
coupons;
(b) The value of the U.S. Department of Agriculture donated foods
(surplus commodities);
(c) Any payment received under title II of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970;
(d) Grants or loans to any undergraduate student for educational
purposes made or insured under any programs administered by the
Secretary of Education except the programs under the Carl D. Perkins
Vocational and Applied Technology Education Act (20 U.S.C. 2301 et
seq.). Student financial assistance provided under the Carl D. Perkins
Vocational and Applied Technology Education Act will be disregarded in
accordance with paragraph (a)(4)(ii)(t) of this section.
(e) Any funds distributed per capita to or held in trust for members
of any Indian tribe under Public Law 92-254 or Pub. L. 94-540;
(f) Any benefits received under title VII, Nutrition Program for the
Elderly, of the Older Americans Act of 1965, as amended;
(g) Payments for supporting services or reimbursement of out-of-
pocket expenses made to individual volunteers serving as foster
grandparents, senior health aides, or senior companions, and to persons
serving in the Service Corps of Retired Executives (SCORE) and Active
Corps of Executives (ACE) and any other programs under titles II and
III, pursuant to section 418 of Pub. L. 93-113;
(h) Payments to applicants or recipients participating in the
Volunteers in Service to America (VISTA) Program, except that this
disregard will not be applied when the Director of ACTION determines
that the value of all such payments, adjusted to reflect the number of
hours such volunteers are serving, is equivalent to or greater than the
minimum wage then in effect under the Fair Labor Standards Act of 1938,
or the minimum wage under the laws of the States where the volunteers
are serving, whichever is greater. (Section 404(g) of Pub. L. 93-113, as
amended by section 9 of Pub. L. 96-143);
(i) The value of supplemental food assistance received under the
Child Nutrition Act of 1966 as amended, and the special food service
program for children under the National School Lunch Act, as amended
(Pub. L. 92-433 and Pub. L. 93-150);
(j) [Reserved]
(k) Pursuant to section 15 of Public Law 100-241, any of the
following distributions made to a household, an individual Native, or a
descendant of a Native by a Native Corporation established pursuant to
the Alaska Native
[[Page 68]]
Claims Settlement Act (ANCSA) (Pub. L. 92-203, as amended):
(1) Cash distributions (including cash dividends on stock from a
Native Corporation) received by an individual are never counted as
income or resources to the extent that such cash does not, in the
aggregate, exceed $2,000 in a year. Cash which, in the aggregate, is in
excess of $2,000 in a year is not subject to the income and resources
disregards in this paragraph (a)(4)(ii)(k)(1);
(2) Stock (including stock issued or distributed by a Native
Corporation as a dividend or distribution on stock);
(3) A partnership interest;
(4) Land or an interest in land (including land or an interest in
land received from a Native Corporation as a dividend or distribution on
stock); and
(5) An interest in a settlement trust.
(l) Benefits paid to eligible households under the Low Income Home
Energy Assistance Act of 1981 pursuant to section 2605(f) of Pub. L. 97-
35;
(m) Effective October 17, 1975, pursuant to section 6 of Pub. L. 94-
114 (89 Stat. 577, 25 U.S.C. 459e) receipts distributed to members of
certain Indian tribes which are referred to in section 5 of Pub. L. 94-
114 (89 Stat. 577, 25 U.S.C. 459d).
(n) Pursuant to section 7 of Public Law 93-134, as amended by
section 4 of Public Law 97-458, Indian judgment funds that are held in
trust by the Secretary of the Interior (including interest and
investment income accrued while such funds are so held in trust), or
distributed per capita to a household or member of an Indian tribe
pursuant to a plan prepared by the Secretary of the Interior and not
disapproved by a joint resolution of the Congress, and initial purchases
made with such funds. This disregard does not apply to proceeds from the
sale of initial purchases, subsequent purchases made with funds derived
from the sale or conversion of the initial purchases, or to funds or
initial purchases which are inherited or transferred.
(o) Pursuant to section 2 of Public Law 98-64, all funds held in
trust by the Secretary of the Interior for an Indian tribe (including
interest and investment income accrued while such funds are so held in
trust) and distributed per capita to a household or member of an Indian
tribe, and initial purchases made with such funds. This disregard does
not apply to proceeds from the sale of initial purchases, subsequent
purchases made with funds derived from the sale or conversion of initial
purchases, or to funds or initial purchases which are inherited or
transferred.
(p) Any student financial assistance provided under programs in
title IV of the Higher Education Act of 1965, as amended, and under
Bureau of Indian Affairs education assistance programs.
(q) For AFDC, any payments made as restitution to an individual
under title I of Public Law 100-383 (the Civil Liberties Act of 1988) or
under title II of Public Law 100-383 (the Aleutian and Pribilof Islands
Restitution Act).
(r) Any Federal major disaster and emergency assistance provided
under the Disaster Relief Act of 1974, as amended by Public Law 100-707
(the Disaster Relief and Emergency Assistance Amendments of 1988) and
comparable disaster assistance provided by States, local governments and
disaster assistance organizations.
(s) Any payments made pursuant to the settlement in the In Re Agent
Orange Product liability litigation, M.D.L. No. 381 (E.D.N.Y.).
(t) Student financial assistance made available for the attendance
costs defined in this paragraph under programs in the Carl D. Perkins
Vocational and Applied Technology Education Act (20 U.S.C. 2301 et
seq.). Attendance costs are: tuition and fees normally assessed a
student carrying the same academic workload as determined by the
institution, and including costs for rental or purchase of any
equipment, materials, or supplies required of all students in the same
course of study; and an allowance for books, supplies, transportation,
dependent care and miscellaneous personal expenses for a student
attending the institution on at least a half-time basis, as determined
by the institution.
(u) For AFDC, any payments made pursuant to section 6(h)(2) of
Public Law 101-426, the Radiation Exposure Compensation Act.
(iii) Provide that income and resources which are disregarded or set
[[Page 69]]
aside under this part will not be taken into consideration in
determining the need of any other individual for assistance.
(iv) For AFDC, any amounts determined to have been paid by a State
from State-only funds to supplement or otherwise increase the amount of
aid paid to an assistance unit as computed under Sec. 233.35 for a
month in recognition of current or anticipated needs of the assistance
unit for that same month shall not be counted as income--to the extent
that the total of the State supplemental payment, the AFDC payment and
actual income (i.e., the amount of income received during the payment
month after subtracting from gross income the $75 work expense disregard
(to recognize mandatory payroll deductions, transportation costs, and
other work expenses), child care and other applicable disregards)
received in that month are not in excess of what the State would have
paid for that month to an assistance unit of the same size and
composition with no income--in computing the assistance payment under
Sec. 233.35 for the corresponding payment month.
(5) Proration of shelter, utilities, and similar needs in AFDC. (i)
Provide that the State agency may prorate allowances in the need and
payment standards for shelter, utilities, and similar needs when the
AFDC assistance unit lives together with other individuals as a
household; except that, the State shall not prorate with respect to any
person receiving SSI to whom the statutory one-third reduction (section
1612(a)(2)(A)(i) of the Act) is applied, or prorate when a bona fide
landlord-tenant relationship exists. If the State chooses to prorate
under this paragraph, it must prorate both the need standard and payment
standard.
(ii) If the State agency elects to prorate allowances for shelter,
utilities, and similar needs the State plan must:
(A) Indicate which allowances will be prorated, and describe the
procedure which will be used to prorate the allowances;
(B) Provide that the allowances will be prorated on a reasonable
basis; and
(C) Specify the circumstances under which proration will occur,
including a description of which individuals are considered to be living
with an AFDC assistance unit as a household.
(6) Disregard of earned income; definition. Provide that for
purposes of disregarding earned income the agency policies will include:
(i) A definition of earned income in accordance with the provisions
of paragraphs (a)(6) (iii) through (ix) of this section; and
(ii) Provision for disregarding earned income for the period during
which it is earned, rather than when it is paid, in cases of lump-sum
payment for services rendered over a period of more than 1 month.
(iii) The term earned income encompasses income in cash or in kind
earned by an individual through the receipt of wages, salary,
commissions, or profit from activities in which he is engaged as a self-
employed individual or as an employee. For AFDC, earned income means
gross earned income prior to any deductions for taxes or for any other
purposes, except as provided in paragraph (a)(6)(v). Such earned income
may be derived from his own employment, such as a business enterprise,
or farming; or derived from wages or salary received as an employee. It
includes earnings over a period of time for which settlement is made at
one given time, as in the instance of sale of farm crops, livestock, or
poultry. For OAA, AB, APTD and AABD only, in considering income from
farm operation, the option available for reporting under OASDI, namely
the cash receipts and disbursements method, i.e., a record of actual
gross, of expenses, and of net, is an individual determination and is
acceptable also for these assistance programs.
(iv) With reference to commissions, wages, or salary, the term
earned income means the total amount, irrespective of personal expenses,
such as income-tax deductions, lunches, and transportation to and from
work, and irrespective of expenses of employment which are not personal,
such as the cost of tools, materials, special uniforms, or
transportation to call on customers.
(v)(A) For OAA, AB, APTD, and AABD, with respect to self-employment,
the term earned income means
[[Page 70]]
the total profit from business enterprise, farming, etc., resulting from
a comparison of the gross income received with the business expenses,
i.e., total cost of the production of the income. Personal expenses,
such as income-tax payments, lunches, and transportation to and from
work, are not classified as business expenses.
(B) For AFDC, with respect to self-employment the term earned income
means the total profit from business enterprise, farming, etc.,
resulting from a comparison of the gross receipts with the business
expenses, i.e., expenses directly related to producing the goods or
services and without which the goods or services could not be produced.
However, items such as depreciation, personal business and entertainment
expenses, personal transportation, purchase of capital equipment and
payments on the principal of loans for capital assets or durable goods
are not business expenses.
(vi) The definition shall exclude the following from earned income:
Returns from capital investment with respect to which the individual is
not himself actively engaged, as in a business (for example, under most
circumstances, dividends and interest would be excluded from earned
income); benefits (not in the nature of wages, salary, or profit)
accruing as compensation, or reward for service, or as compensation for
lack of employment (for example, pensions and benefits, such as United
Mine Workers' benefits or veterans' benefits).
(vii) With regard to the degree of activity, earned income is income
produced as a result of the performance of services by a recipient; in
other words, income which the individual earns by his own efforts,
including managerial responsibilities, would be properly classified as
earned income, such as management of capital investment in real estate.
Conversely, for example, in the instance of capital investment wherein
the individual carries no specific responsibility, such as where rental
properties are in the hands of rental agencies and the check is
forwarded to the recipient, the income would not be classified as earned
income.
(viii) Reserves accumulated from earnings are given no different
treatment than reserves accumulated from any other sources.
(7) Disregard of earned income; method. (i) Provide that for other
than AFDC, the following method will be used for disregarding earned
income: The applicable amounts of earned income to be disregarded will
be deducted from the gross amount of earned income, and all work
expenses, personal and non-personal, will then be deducted. Only the net
amount remaining will be applied in determining need and the amount of
the assistance payment.
(ii) In applying the $30 and one-third disregard under paragraph
(a)(11)(i)(D) of this section to an applicant for AFDC, there will be a
preliminary step to determine whether the assistance unit is eligible
without applying the disregard to the individual's earned income, by
comparing the applicant's gross earned income (less the disregards in
paragraphs (a)(11)(i) (A), (B) and (C)) and all of the assistance unit's
other income to the State need standard. This preliminary step does not
apply if the individual has received AFDC in one of the four months
prior to the month of application.
(8) Disregard of earned income applicable only to OAA, APTD, or
AABD. If the State chooses to disregard earned income, specify the
amount to be disregarded of the first $80 per month of income that is
earned by an aged or disabled individual claiming OAA, APTD, or AABD,
who is not blind, but not more than $20 per month plus one-half of the
next $60 of such earned income.
(9) Disregard of income and resources applicable only to APTD or
AABD. If the State chooses to disregard income (which may be additional
to the income disregarded under paragraph (a)(8) of this section) or
resources for a disabled individual to achieve the fulfillment of a plan
of self-support, provide that the amounts of additional income and
resources will not exceed those found necessary for the period during
which the individual is actually undergoing vocational rehabilitation,
and specify the period, not in excess of 36 months, for which such
amounts are to be disregarded.
(10) Disregard of income and resources applicable only to AB or
AABD. Provide
[[Page 71]]
that, in determining the need of individuals who are blind, (i) the
first $85 per month of earned income of the individual plus one-half of
earned income in excess of $85 per month will be disregarded; and (ii)
if the individual has a plan for achieving self-support, such additional
income and resources as are necessary to fulfill such plan will be
disregarded for a period not in excess of 12 months. Such additional
income and resources may be disregarded for an additional period not in
excess of 24 months (for a total of 36 months), as specified in the
State plan.
(11) Disregard of income and resources applicable only to AFDC. (i)
For purposes of eligibility determination, the State must disregard from
the monthly earned income, i.e., earned income as defined in Sec.
233.20(a)(6)(iii), of each individual whose needs are included in the
eligibility determination:
(A) Disregard all of the monthly earned income of each child
receiving AFDC if the child is a full-time student or is a part-time
student who is not a full-time employee. A student is one who is
attending a school, college, or university or a course of vocational or
technical training designed to fit him or her for gainful employment and
includes a participant in the Job Corps program under the Job Training
Partnership Act (JTPA).
(B) The first $90.
(C) Where appropriate, an amount equal to $30 plus one-third of the
earned income not already disregarded under paragraphs (a)(11)(i),
(a)(11)(v) and (a)(11)(vi) of this section of an individual who received
assistance in one of the four prior months.
(D) An amount equal to the actual cost for the care of each
dependent child or incapacitated adult living in the same home and
receiving AFDC, but not to exceed $175 for each dependent child who is
at least age two or each incapacitated adult, and not to exceed $200 for
each dependent child who is under age two. For individuals not engaged
in full-time employment or not employed throughout the month, the $175
and $200 disregard limits may be applied, or the State agency may
establish disregard limits less than $175 and $200.
(E) Where appropriate, $30 of the earned income not already
disregarded under paragraphs (a)(11) (i), (v), and (vi) of this section,
in the case of an individual who reapplies for assistance within the
eight-month period that he/she is eligible for the $30 disregard.
(ii) For purposes of benefit calculation for individuals found
eligible under paragraph (a)(11)(i) of this section, the following
disregards must be made by the State:
(A) Disregard all of the monthly earned income of each child
receiving AFDC if the child is a full-time student or is a part-time
student who is not a full-time employee. A student is one who is
attending a school, college, or university or a course of vocational or
technical training designed to fit him or her for gainful employment and
includes a participant in the Job Corps program under the Job Training
Partnership Act (JTPA).
(B) Disregard from any other individual's earned income the amounts
specified in paragraphs (a)(11)(i)(B) and (a)(11)(i)(D) of this section,
and $30 plus one-third of the individual's earned income not already
disregarded under paragraphs (a)(11)(ii) and (a)(11)(v) of this section.
However, the State may not provide the one-third portion of the
disregard to an individual after the fourth consecutive month (any month
for which the unit loses the $30 plus one-third disregard because of a
provision in paragraph (a)(11)(iii) of this section, shall be considered
as one of these months) it has been applied to the individual's earned
income and may not apply the $30 disregard after the eighth month
following the fourth consecutive month (regardless of whether the $30
disregard was actually applied in those months) unless twelve
consecutive months have passed during which the individual is not a
recipient of AFDC. If income from a recurring source resulted in
suspension or termination due to an extra paycheck, the month of
ineligibility does not interrupt the accumulation of consecutive months
of the $30 plus one-third disregard, nor does it count as one of the
consecutive months.
(iii) The applicable earned income disregards in paragraphs (i) (B)
and (C) and (ii)(B) of this paragraph do not
[[Page 72]]
apply to the earned income of the individual for the month in which one
of the following conditions apply to him:
(A) An individual terminated his employment or reduced his earned
income without good cause (as specified in the State plan) within the
period of 30 days preceding such month;
(B) An individual refused without good cause (as specified in the
State plan) within the period of 30 days preceding such month to accept
employment in which he is able to engage which is offered through the
public employment offices of the State, or is otherwise offered by an
employer if the offer of such employer is determined by the State or
local agency administering the State plan, after notification by him, to
be a bona fide offer of employment;
(C) An individual failed without good cause (as specified in the
State plan) to make a timely report (as defined in Sec. 233.37(c)) of
that income; or
(D) The individual voluntarily requests assistance to be terminated
for the primary purpose of avoiding receiving the $30 and one-third
disregard for four consecutive months.
(iv) [Reserved]
(v) The treatment of earned income and expenses under JOBS is as
follows:
(A) For earned income from regular employment or on-the-job
training, as described at Sec. 250.61, the disregards in paragraphs
(a)(11)(i) and (a)(11)(ii)(B) shall apply.
(B) For earned income from a job under the work supplementation
component, as described at Sec. 250.62, the disregards in paragraphs
(a)(11)(i) and (a)(11)(ii)(B) shall apply unless the State IV-A agency
in its State JOBS plan, has elected to provide otherwise under Sec.
250.62(j) and Sec. 250.62(k).
(C) For all activities under JOBS and self-initiated education and
training in non-JOBS areas, advance payment or reimbursement to the
individual for child care, transportation, work-related expenses, or
work-related supportive services is disregarded.
(D) Payment or reimbursement of child care pursuant to part 255 for
employed individuals who are not JOBS participants and one-time work-
related expenses for individuals who are not JOBS participants pursuant
to part 255 are disregarded.
(vi) At State option, disregard all or part of the monthly income of
any dependent child applying for or receiving AFDC when the income is
derived from a program carried out under the Job Training Partnership
Act of 1982, except that in respect to earned income such disregard may
not exceed six months per calendar year.
(vii) At State option, disregard all or part of the monthly earned
income of any dependent child applying for AFDC, if the child is a full-
time student, and that income has been disregarded for purposes of
paragraph (a)(3)(xiii) of this section.
(viii) Disregard as income the amount of any earned income tax
credit payments received by an applicant or recipient. Disregard as
resources, in the month of receipt and the following month, the amount
of any earned income tax credit payments received by an applicant or
recipient. ``Earned income tax credit payments'' include: Any advance
earned income tax credit payment made to a family by an employer and any
earned income tax credit payment made as a refund of Federal income
taxes.
(12) Recoupment of overpayments and correction of underpayments for
programs other than AFDC. Specify uniform Statewide policies for:
(i) Recoupment of overpayments of assistance, including certain
overpayments resulting from assistance paid pending hearing decisions.
(A) The State may not recoup any overpayment previously made to a
recipient:
(1) Unless the recipient has income or resources exclusive of the
current assistance payment currently available in the amount by which
the agency proposes to reduce payments: except that,
(2) Where such overpayments were occassioned or caused by the
recipient's willful withholding of information concerning his income,
resources or other circumstances which may affect the amount of payment,
the State may recoup prior overpayments from current assistance grants
irrespective of current income or resources.
[[Page 73]]
(B) Withholding of information which is subject to the provisions of
paragraph (a)(12)(i)(A)(2) of this section includes the following:
(1) Willful misstatements (either oral or written) made by a
recipient in response to oral or written questions from the State agency
concerning the recipient's income, resources or other circumstances
which may affect the amount of payment. Such misstatements may include
understatements of amounts of income or resources and omission of an
entire category of income or resources;
(2) A willful failure by the recipient to report changes in income,
resources or other circumstances which may affect the amount of payment,
if the State agency has clearly notified the recipient of an obligation
to report such changes. The recipient shall be given such notification
periodically at times (not less frequently than semi-annually) and by
methods which the State agency determines will effectively bring such
reporting requirements to the recipient's attention:
(3) A willfull failure by the recipient (i) to report receipt of a
payment which the recipient knew represented an erroneous overpayment,
or (ii) to notify the State agency of receipt of a check which exceeded
the prior check by at least the amount which the State agency had
previously notified the recipient (pursuant to the provisions of
paragraph (a)(12)(i)(A)(4) of this section) might represent an
overpayment and constitute a sum to which the recipient would not be
entitled. In making a determination pursuant to this paragraph
(a)(12)(i)(B)(3), all relevant circumstances including the amount by
which the erroneous payment exceeded the previous payment shall be
considered.
(C) Each periodic notification under paragraph (a)(12)(i)(B)(2) of
this section shall:
(1) Include a reminder that it is the recipient's continuing
obligation to furnish to the State agency accurate and timely
information concerning changes in income, resources, or other
circumstances which may affect the amount of payment, within a
reasonable specified period after such change. The recipient may also be
notified that a failure to so notify the State agency within the
designated time period may constitute a willful withholding of such
information and permit the State agency to recover any overpayment
occasioned or caused by the willful withholding;
(2) Specifically and comprehensibly in simple phraseology indicate
the type of information to be disclosed by the recipient. Examples shall
be furnished of the most frequent types of newly acquired income or
resources (e.g., inheritance, wages from a part-time job);
(3) Require that, if there is any doubt whether a particular change
in circumstances constitutes such reportable information, the recipient
contact the State agency or a designated representative thereof within a
reasonable specified period of time after such change in circumstances;
(4) If the State plan provides for recoupment in the circumstances
described in paragraph (a)(12)(i)(B)(3)(ii) of this section, notify the
recipient that if the check received exceeds the prior check by a
specified amount (which amount may not be less than that which a
reasonable man should have known was erroneous), this increased check
may constitute a sum to which the recipient is not entitled. In such
instances, the notification may require that the recipient notify the
State agency or a designated representative thereof prior to the
negotiation of such check, so that corrective action may be taken; the
State agency shall respond to such notification within 24 hours. The
recipient may also be notified that a failure to so notify the State
agency within the designated time period may constitute a willful
withholding of such information and permit the State agency to recover
such overpayment.
(D) The State agency shall require periodic formal acknowledgement
by recipients (on a form utilized for this purpose) that the reporting
obligations of this paragraph had been brought to the recipient's
attention and that they were understood.
(E) Any recoupment of overpayments made under circumstances other
than those specified in paragraph (a)(12)(i)(B) of this section shall be
limited to overpayments made during the
[[Page 74]]
12 months preceding the month in which the overpayment was discovered.
(F) Any recoupment of overpayments permitted by paragraph
(a)(12)(i)(A)(2) of this section may be made from available income and
resources (including disregarded, set-aside or reserved items) or from
current assistance payment or from both. If recoupments are made from
current assistance payments, the State shall, on a case-by-case basis,
limit the proportion of such payments that may be deducted in each case,
so as not to cause undue hardship to recipients.
(G) The plan may provide for recoupment in all situations specified
herein, or only in certain of the circumstances specified herein, and
for waiver of the overpayment where the cost of collection would exceed
the amount of the overpayment.
(H) Election by the State not to recoup overpayments shall not waive
the provisions of Sec. Sec. 205.40, and 205.41, or any other quality
control requirement.
(ii) Prompt correction of underpayments to current recipients,
resulting from administrative error where the State plan provides for
recoupment of overpayments. Under this requirement:
(a) Retroactive corrective payment shall be made only for the 12
months preceding the month in which the underpayment is discovered;
(b) For purposes of determining continued eligibility and amount of
assistance, such retroactive corrective payments shall not be considered
as income or as a resource in the month paid nor in the next following
month; and
(c) No retroactive payment need be made where the administrative
cost would exceed the amount of the payment.
(13) Recovery of overpayments and correction of underpayments for
AFDC.(i) Specify uniform Statewide policies for recovery of overpayments
of assistance, including overpayments resulting from assistance paid
pending hearing decisions. Overpayment means a financial assistance
payment received by or for an assistance unit for the payment month
which exceeds the amount for which that unit was eligible. (The agency
may deny assistance for the corresponding payment month rather than
recover if the assistance unit was ineligible for the budget month, the
State becomes aware of the ineligibility when the monthly report is
submitted, the recipient accurately reported the budget month's income
and other circumstances, and the assistance unit will be eligible for
the following payment month.)
(A) The State must take all reasonable steps necessary to promptly
correct any overpayment, except that, as set forth in the plan, a State
may waive any overpayment which occurred because receipt of an earned
income tax credit payment by a family during the period January 1, 1990,
to December 31, 1990, caused ineligibility under the 185 percent gross
income limitation in paragraph (a)(3)(xiii) of this section.
(1) Any recovery of an overpayment to a current assistance unit,
including a current assistance unit or recipient whose overpayment
occurred during a prior period of eligibility, must be recovered through
repayment (in part or in full) by the individual responsible for the
overpayment or recovering the overpayment by reducing the amount of any
aid payable to the assistance unit of which he or she is a member, or
both.
(2) If recovery is made from the grant, such recovery shall result
in the assistance unit retaining, for any payment month, from the
combined aid, income and liquid resources, (without application of
section 402(a)(8) of the Act) not less than 90 percent of the amount
payable under the State plan to a family of the same composition with no
other income. Where a State chooses to recover at a rate less than the
maximum, it must recover promptly.
(B) The State shall recover an overpayment from (1) the assistance
unit which was overpaid, or (2) any assistance unit of which a member of
the overpaid assistance unit has subsequently become a member, or (3)
any individual members of the overpaid assistance unit whether or not
currently a recipient. If the State recovers from individuals who are no
longer recipients, or from recipients who refuse to repay the
overpayment from their income and resources, recovery shall be made by
appropriate action under
[[Page 75]]
State law against the income or resources of those individuals.
(C) If through recovery, the amount payable to the assistance unit
is reduced to zero, members of the assistance unit are still considered
recipients of AFDC.
(D) In cases which have both an underpayment and an overpayment, the
State may offset one against the other in correcting the payment.
(E) Prompt recovery of an overpayment: A State must take one of the
following three actions by the end of the quarter following the quarter
in which the overpayment is first identified:
(1) Recover the overpayment, (2) initiate action to locate and/or
recover the overpayment from a former recipient, or (3) execute a
monthly recovery agreement from a current recipient's grant or income/
resources.
(ii) Specify uniform Statewide policies for prompt correction of any
underpayments to current recipients and those who would be a current
recipient if the error causing the underpayment had not occurred.
Underpayment means a financial assistance payment received by or for an
assistance unit for the payment month which is less than the amount for
which the assistance unit was eligible, or failure by the State to issue
a financial assistance payment for the payment month to an eligible
assistance unit if such payment should have been issued. Under this
requirement, for purposes of determining continued eligibility and
amount of assistance, such retroactive corrective payments shall not be
considered as income, or as a resource in the month paid nor in the next
following month.
(iii) Paragraph (a)(13) of this section is effective for incorrect
payments which are identified subsequent to September 30, 1981.
(iv) In locating former recipients who have outstanding overpayments
the State should use appropriate data sources such as State unemployment
insurance files, State Department of Revenue information from tax
returns, State automobile registration, Bendex, and other files relating
to current or former recipients.
(v) The State must maintain information on the individual and total
number and amount of overpayments identified and their disposition for
current and former recipients.
(vi) The State may elect not to attempt recovery of an overpayment
from an individual no longer receiving aid where the overpayment amount
is less than $35. Where the overpayment amount owed by an individual no
longer receiving aid is $35 or more, the State can determine when it is
no longer cost-effective to continue overpayment recovery efforts,
provided it has made reasonable efforts to recover the overpayment from
the individual. Reasonable efforts must include notification of the
amount of and reason for the overpayment and that repayment is required.
States must also maintain information regarding uncollected overpayments
as provided under paragraph (a)(13)(v) of this section, to enable the
State to recover those overpayments if the individual subsequently
becomes a recipient. In cases involving fraud, States must make every
effort to recover the overpayment, regardless of the amount.
(14) For Medicaid eligibility only, beginning October 1, 1998,
pursuant to section 402(a)(37) of the Act, an assistance unit will be
deemed to be receiving AFDC, but only for the purposes of this
paragraph, for a period of nine months after the last month the family
actually received aid if the loss of AFDC eligibility was solely because
a member of the unit was no longer eligible due to the 4 and 12 month
time limitations to have the $30 and one-third or the $30 disregard in
paragraph (a)(11)(ii)(B) applied to his or her earned income. At State
option, an additional period of Medicaid coverage for up to six months
may be provided when the assistance unit would be eligible during such
additional period to receive AFDC if the $30 and one-third or the $30
disregards were applied to the assistance unit's earned income.
(15) For Medicaid eligibility only, pursuant to section 406(h) of
the Act:
(i) Each dependent child and each relative with whom such a child is
living (including the eligible spouse of such relative pursuant to
section 237.50(b) of this chapter) who becomes ineligible for AFDC
wholly or partly because of the initiation of or an increase in the
[[Page 76]]
amount of a child or spousal support collection under title IV-D will be
deemed to be receiving AFDC, but only for purposes of this paragraph
(a)(15), for a period of four consecutive calendar months beginning with
the first month of AFDC ineligibility. To be eligible for extended
Medicaid coverage pursuant to this paragraph (a)(15), each dependent
child and relative must meet the following conditions:
(A) The individual must have become ineligible for AFDC on or after
August 16, 1984; and
(B) The individual must have received AFDC in at least three of the
six months immediately preceding the month in which the individual
becomes ineligible for AFDC; and
(C) The individual must have become ineligible for AFDC wholly or
partly as a result of the initiation of or an increase in the amount of
a child or spousal support collection under title IV-D.
(ii)(A) Except as provided in paragraph (a)(15)(ii)(B) of this
section, individuals who are eligible for extended Medicaid lose this
coverage if they move to another State during the 4-month period.
However, if they move back to and reestablish residence in the State in
which they have extended coverage, they are eligible for any of the
months remaining in the 4-month period in which they are residents of
the State.
(B) If a State has chosen in its State plan to provide Medicaid to
non-residents, the State may continue to provide the 4-month extended
benefits to individuals who have moved to another State.
(iii) For purposes of paragraph (i) of this section:
(A) The new collection or increased collection of child or spousal
support results in the termination of AFDC eligibility when it actively
causes or contributes to the termination. This occurs when:
(1) The change in support collection in and of itself is sufficient
to cause ineligibility. This rule applies even if the support collection
must be added to other, stable income. It also applies even if other
independent factors, alone or in combination with each other, might
simultaneously cause ineligibility; or
(2) The change in support contributes to ineligibility but does not
by itself cause ineligibility. Ineligibility must result when the change
in support is combined with other changes in income or changes in other
circumstances and the other changes in income or circumstances cannot
alone or in combination result in termination without the change in
support.
(B) In cases of increases in the amounts of both the support
collections and earned income, eligibility under this section does not
preclude eligibility under paragraph (a)(14) of this section or section
1925 of the Social Security Act (which was added by section 303(a) of
the Family Support Act of 1988 (42 U.S.C. 139r-6)). Extended periods
result from both an increase in the amount of the support collection and
from an increase in earned income must run concurrently.
(b) Federal financial participation; General. (1) Federal
participation will be available in financial assistance payments made on
the basis that (after application of policies governing the allowable
reserve, disregard or setting aside of income and resources), all income
of the needy individual, together with the assistance payment, do not
exceed the State's defined standard of assistance, and available
resources of the needy individuals do not exceed the limits under the
State plan.
(2) Federal participation is available within the maximums specified
in the Federal law, when the payments do not exceed the amount
determined to be needed under the statewide standard, and are made in
accordance with the State method for determining the amount of the
payments, as specified in Sec. 233.31 for AFDC and in Sec. Sec. 233.24
and 233.25 for OAA, AB, APTD, and AABD.
(3) Federal participation is available in financial assistance
payments made on the basis of the need of the individual. This basis may
include consideration of needy persons living in the same home with the
recipient when such other persons are within the State's policy as
essential to his well-being. Persons living in the home who are
``essential to the well-being of the recipient,'' as specified in the
State
[[Page 77]]
plan, will govern as the basis for Federal participation (see Guides and
Recommendations). When the State includes persons living outside the
home or persons not in need, Federal participation is not available for
that portion of financial assistance payments attributable to such
persons, and the State's claims must, therefore, identify the amounts of
any such nonmatchable payments.
(4) For all assistance programs except AFDC, Federal participation
is available for supplemental payments in the retrospective budgeting
system.
(c) Federal financial participation in vendor payments for home
repairs. With respect to expenditures made after December 31, 1967,
expenditures to a maximum of $500 are subject to Federal financial
participation at 50 percent for repairing the home owned by an
individual who is receiving aid or assistance (other than Medical
Assistance for the Aged) under a State plan for OAA, AFDC, AB, APTD, or
AABD if:
(1) Prior to making the expenditures the agency determined that: (i)
The home is so defective that continued occupancy is unwarranted; (ii)
unless repairs are made the recipient would need to move to rental
quarters; and (iii) the rental cost of quarters for the recipient
(including the spouse living with him in such home and any other
individual whose needs were considered in determining the recipient's
need) would exceed (over a period of 2 years) the repair costs needed to
make such home habitable together with other costs attributable to
continued occupancy of such home.
(2) No expenditures for repair of such home were made previously
pursuant to a determination as described in paragraph (c)(1) of this
section. This does not preclude more than one payment made at the time
repairs are made pursuant to the determination, e.g., separate payments
to the roofer, the electrician, and the plumber.
(3) Expenditures for home repairs are authorized in writing by a
responsible agency person, records show the eligible person in whose
behalf the home repair expenditure was made, and there is sufficient
evidence that the home repair was performed.
[34 FR 1394, Jan. 29, 1969]
Editorial Note: For Federal Register citations to Sec. 233.20, see
the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Effective Date Note: At 47 FR 5678, Feb. 5, 1982, in Sec. 233.20,
paragraph (a)(13)(v) was added. The amendment contains information
collection and recordkeeping requirements and will not become effective
until approval has been given by the Office of Management and Budget.
Sec. 233.21 Budgeting methods for OAA, AB, APTD, and AABD.
(a) Requirements for State plans. A State plan for OAA, AB, APTD,
and AABD shall specify if assistance payments shall be computed using a
prospective budgeting system or a retrospective budgeting system. A
State electing retrospective budgeting shall specify which options it
selects and the State plan shall state that it shall meet the
requirements in Sec. Sec. 233.21 through 233.29. Budgeting methods for
AFDC are described in Sec. Sec. 233.31 through 233.37.
(b) Definitions. The following definitions apply to Sec. Sec.
233.21 through 233.29:
(1) Prospective budgeting means that the agency shall compute the
amount of assistance for a payment month based on its best estimate of
income and circumstances which will exist in that month. This estimate
shall be based on the agency's reasonable expectation and knowledge of
current, past or future circumstances.
(2) Retrospective budgeting means that the agency shall compute the
amount of assistance for a payment month based on actual income or
circumstances which existed in a previous month, the ``budget month''.
(3) Budget month means the fiscal or calendar month from which the
agency shall use income or circumstances of the family to compute the
amount of assistance.
(4) Payment month means the fiscal or calendar month for which an
agency shall pay assistance. Payment is based upon income or
circumstances in the budget month. In prospective budgeting, the budget
month and the payment month are the same. In retrospective budgeting,
the payment month follows the budget month and the payment month shall
begin within
[[Page 78]]
32 days after the end of the budget month.
(5) Make an assistance payment. In the context of retrospective
budgeting, to make an assistance payment means that the check shall be
deposited in the U.S. mail, hand delivered to the recipient, or
deposited with an intermediary organization, such as a bank.
(6) Supplemental payment. In the context of retrospective budgeting,
a supplemental payment is a payment which maintains a family during the
time it takes for the monthly assistance payment to reflect a change in
circumstances or income.
[44 FR 26082, May 4, 1979, as amended at 47 FR 5678, Feb. 5, 1982]
Sec. 233.22 Determining eligibility under prospective budgeting.
In States which compute the amount of the assistance payment
prospectively, the State plan shall provide that the State shall also
determine all factors of eligibility prospectively. Thus, the State
agency shall establish eligibility based on its best estimate of income
and circumstances which will exist in the month for which the assistance
payment is made.
[44 FR 26082, May 4, 1979]
Sec. 233.23 When assistance shall be paid under retrospective budgeting.
(a) A State which uses retrospective budgeting shall specify in its
plan that it will make assistance payments within the following time
limits to recipients who file a completed report on time, and to those
who are not required to file a report. A State shall choose one of two
time periods for making assistance payments. The State plan shall
provide that payment must be made:
(1) Within 25 days from the close of the budget month; or
(2) Between 25 and 45 days from the close of the budget month.
(b)(1) Where a State makes payments between 25 and 45 days from the
close of the budget month, the State plan shall provide that the State
will make supplemental payments as provided in Sec. 233.27.
(2) If a State makes payments within 25 days from the close of the
budget month, and also makes supplemental payments as provided in Sec.
233.27, the State plan shall so specify.
(c) In States which issue two checks for each payment month, these
time periods apply to the first check.
[44 FR 26083, May 4, 1979]
Sec. 233.24 Retrospective budgeting; determining eligibility and computing the assistance payment in the initial one or two months.
(a) States which make assistance payments within 25 days of the
close of the budget month shall determine eligibility and compute the
amount of the payment for all recipients prospectively for the initial
month of assistance. These States may choose to determine eligibility
and compute the payment prospectively for the second month, also.
(b) States which make assistance payments between 25 and 45 days
from the close of the budget month shall determine eligibility and
compute the amount of the payment prospectively for the initial two
months of assistance.
(c) When a person who previously received assistance reapplies
during the same month in which a termination became effective,
eligibility shall be determined according to paragraph (a) or (b) of
this section. However, the amount of the assistance payment for the
month of the reapplication shall be computed retrospectively.
[44 FR 26083, May 4, 1979]
Sec. 233.25 Retrospective budgeting; computing the assistance payment after the initial one or two months.
The State plan shall provide:
(a) After the initial one or two payment months of assistance under
Sec. 233.24, the amount of each subsequent month's payment shall be
computed retrospectively, i.e., shall be based on earned and unearned
income received in the corresponding budget month.
(b) In these subsequent months, other factors of need which affect
the amount of the assistance payment may also be based on circumstances
in the corresponding budget month, or they may be based on circumstances
in the payment month.
[[Page 79]]
(c) For the first month in which retrospective budgeting is used, a
State shall not consider income received by the recipient before the
date of application. When a person reapplies during the same month in
which a termination became effective, the State may consider income
received before the date of application.
[44 FR 26083, May 4, 1979]
Sec. 233.26 Retrospective budgeting; determining eligibility after the initial one or two months.
(a) Under retrospective budgeting, there are three options for
determining eligibility. The State plan shall specify that eligibility,
following the initial one or two months under Sec. 233.24, shall be
determined by one of the following methods:
(1) A State may consider all factors, including income
retrospectively, i.e., only from the budget month. For example, if a
change in circumstances occurs which affects eligibility, e.g.,
deprivation ceases, the change may be reported at the end of the budget
month and assistance shall be terminated for the corresponding payment
month. Thus, even if the agency could have terminated assistance earlier
than the corresponding payment month, it shall not do so under
retrospective determination of eligibility.
(2) A State may consider all factors, including income,
prospectively. For example, if deprivation ceases, and the family
becomes ineligible, the agency shall immediately take steps to terminate
assistance.
(3) A State may use a combination of the options in paragraphs (a)
and (b) of this section by considering factors related to earned and
unearned income retrospectively and all other factors prospectively. For
example, if a change in income makes the family ineligible, the agency
shall wait until the corresponding payment month to terminate
assistance. On the other hand, if a change of circumstances other than
income makes the family ineligible, the agency shall immediately take
steps to terminate assistance.
[44 FR 26083, May 4, 1979; 44 FR 29065, May 18, 1979, as amended at 47
FR 47828, Oct. 28, 1982]
Sec. 233.27 Supplemental payments under retrospective budgeting.
(a) General requirements. A State plan which provides for payments
between 25 and 45 days from the close of a budget month, shall provide
for supplemental payments to eligible recipients who request them. A
State plan which provides for payments within 25 days may provide for
supplemental payments:
(1) The supplemental payment shall be paid for the month in which it
was requested.
(2) The recipient family is eligible for a supplemental payment if
its income for the month is less than 80 percent of the amount the State
would pay for a similar family with no income. However, this percentage
of the amount the State would pay for a similar family with no income
may be set between 80 and 100 percent, as specified in the State plan.
The supplemental payment equals the difference between the family's
income in the payment month and that percentage.
(3) Supplemental payments shall be issued within 5 working days of
request.
(b) How income is treated. For purposes of supplemental payments,
income includes that month's assistance payment and any income received
or expected to be received by the recipient, but does not include work-
related expenses.
(1) The amount used for the assistance payment shall be the monthly
assistance payment without regard to any recoupments made for prior
overpayments or adjustments for prior underpayments.
(2) The agency may include as income cash in hand or available in
bank accounts. It may also include as income any cash disregarded in
determining need or the amount of the assistance payment, but not cash
payments that are disregarded by Sec. 233.20(a)(4)(ii), paragraphs (c)
on relocation assistance, (d) on educational grants or loans and (g) on
payments for certain services.
[44 FR 26083, May 4, 1979, as amended at 51 FR 9205, Mar. 18, 1986]
[[Page 80]]
Sec. 233.28 Monthly reporting.
(a) State plans specifying retrospective budgeting shall require
that recipients with earned income, other than income from self-
employment, report that income to the agency monthly. The State may
require recipients with unearned income, no income, or income from self-
employment to report monthly. The agency shall provide a form for this
purpose, which:
(1) Is written in clear simple language;
(2) Specifies the date by which the agency must receive the form and
the consequences of a late or incomplete form, including whether the
agency will delay or withhold payment if the form is not returned by the
specified date;
(3) Identifies an individual or agency unit the recipient should
contact to receive prompt answers to questions about information
requested on the form, and provides a telephone number for this purpose;
(4) Includes a statement, to be signed by the recipient, that he or
she understands that the information he or she provides may result in
changes in assistance, including reduction or termination;
(5) Advises the recipient if supplemental payments are available and
the proper procedures for initiating a request; and
(6) Advises the recipient of his or her right to a fair hearing on
any decrease or termination of assistance or denial of a supplemental
payment.
(b) The agency shall specify the date by which it must receive the
monthly report. This date shall be at least 5 days from the end of the
budget month and shall also allow the recipient at least 5 days to
complete the report.
(c) The agency may consider a monthly report incomplete only if it
is unsigned or omits information necessary to determine eligibility or
compute the payment amount.
(d) The agency shall provide a stamped, self-addressed envelope for
returning the monthly report.
(e) The agency shall make special provisions for persons who are
illiterate or have other handicaps so that they cannot complete a
monthly report form.
[44 FR 26083, May 4, 1979]
Sec. 233.29 How monthly reports are treated and what notices are required.
(a) What happens if a completed monthly report is received on time.
When the agency receives a completed monthly report by the date
specified in Sec. 233.28 it shall process the payment. The agency shall
notify the recipient of any changes from the prior payment and the basis
for its determinations. This notice must meet the requirements of Sec.
205.10(a)(4)(i)(B) of this chapter on adequate notice if the payment is
being reduced or assistance is being terminated. This notice must be
received by the recipient no later than his or her resulting payment or
in lieu of the payment.
(b) What happens if the completed monthly report is received before
the extension deadline. (1) If the completed monthly report is not
received by the date specified in Sec. 233.28, the agency shall send a
notice to the recipient. This notice shall inform him or her that the
monthly report is overdue or is not complete and that he or she has at
least 10 additional days to file. It must inform the recipient that
termination may result if that is the agency's policy, if the report is
not filed within the extension period. This notice must reach the
recipient at least 10 days before the expected payment. However, in
States in which the date specified in Sec. 233.28 is within 10 days of
the expected payment date, the notice must reach the recipient on or
before the expected payment date.
(2) When the report is received within the extension period, the
agency may delay payment to the recipient, as follows:
(i) In a State that pays within 25 days of the budget month the
payment may be delayed 10 days;
(ii) In a State that pays within 25 to 45 days of the budget month,
the payment may not be delayed beyond the 45th day.
(c) What happens if a monthly report is not received by the end of
the extension period. An agency may terminate assistance if it has not
received a report
[[Page 81]]
or has received an incomplete report, and the 10 day extension period
has expired. If the State decides to terminate assistance, it must send
the recipient a notice which meets the requirements of Sec.
205.10(a)(4)(i)(B) on adequate notice.
(d) How a recipient may delay an adverse action based on a monthly
report. If a recipient's assistance is reduced or terminated based on
information in the monthly report, and he or she requests a fair hearing
within 10 days, the assistance payment shall be reinstated immediately
at the previous month's level pending the hearing decision. The payment
shall be made effective from the date assistance was reduced or
terminated.
[44 FR 26084, May 4, 1979]
Sec. 233.31 Budgeting methods for AFDC.
(a) Requirements for State plans. A State plan for AFDC shall
specify that all factors of eligibility shall be determined
prospectively and the amount of the assistance for any month for all
assistance units required to file a monthly report for the month
designated as the budget month under the State's retrospective budgeting
procedures shall be determined using retrospective budgeting as provided
in Sec. Sec. 233.31-233.37 except as provided in Sec. 233.34. The
State plan shall specify whether the State uses prospective or
retrospective budgeting to determine the amount of the assistance
payments for recipients not required to report monthly. Budgeting
methods for OAA, AB, APTD, and AABD are described in Sec. Sec. 233.21-
233.29.
(b) Definitions. The following definitions apply to Sec. Sec.
233.31 through 233.37:
(1) Prospective budgeting means that the agency shall determine
eligibility (and compute the amount of assistance for the first one or
two months) based on its best estimate of income and circumstances which
will exist in that month. This estimate shall be based on the agency's
reasonable expectation and knowledge of current, past or future
circumstances.
(2) Retrospective budgeting means that the agency shall compute the
amount of assistance for a payment month based on actual income or
circumstances which existed in a previous month, the ``budget month.''
(3) Budget month means the fiscal or calendar month from which the
agency shall use income or circumstances of the family to compute the
amount of assistance.
(4) Payment month means the fiscal or calendar month for which an
agency shall pay assistance. Payment is based upon income or
circumstances in the budget month. In prospective budgeting, the budget
month and the payment month are the same. In retrospective budgeting,
the payment month follows the budget month.
(5) Recent work history means the individual received earned income
in any one of the two months prior to the budget month.
[47 FR 5678, Feb. 5, 1982, as amended at 49 FR 35602, Sept. 10, 1984; 57
FR 30160, July 8, 1992]
Sec. 233.32 Payment and budget months (AFDC).
A State shall specify in its plan for AFDC the time period covered
by the payment (payment month) and the time period used to determine
that payment (budget month) and whether it adopts (a) a one-month or
two-month retrospective system; and (b) a one-month or two-month
prospective system for the initial payment months. If a State elects to
have a two-month retrospective system it must also elect a two-month
prospective system.
[47 FR 5678, Feb. 5, 1982]
Sec. 233.33 Determining eligibility prospectively for all payment months (AFDC).
(a) The State plan for AFDC shall provide that the State shall
determine all factors of eligibility prospectively for all payment
months. Thus, the State agency shall establish eligibility based on its
best estimate of income and circumstances which will exist in the month
for which the assistance payment is made.
(b) When a IV-A agency receives an official report of a child
support collection it shall consider that information as provided in
Sec. 232.20(a) of this chapter. (Sec. 232.20(a) explains the treatment
of child support collections.)
[47 FR 5678, Feb. 5, 1982]
[[Page 82]]
Sec. 233.34 Computing the assistance payment in the initial one or two months (AFDC).
A State shall compute the amount of the AFDC payment for the initial
month of eligibility:
(a) Prospectively (except as in paragraphs (b) and (c) of this
section); or
(b) Retrospectively if the applicant received assistance (or would
have except for the prohibition on payments of less than $10) for the
immediately preceding payment month (except where the State pays the
second month after application prospectively); or
(c) Retrospectively if:
(1) Assistance had been suspended as defined in paragraph (d) of
this section; and
(2) The initial month follows the month of suspension; and
(3) The family's circumstances for the initial month had not changed
significantly from those reported in the corresponding budget month,
e.g., loss of job.
(d) A State may suspend, rather than terminate, assistance when:
(1) The agency has knowledge of, or reason to believe that
ineligibility would be only for one payment month; and
(2) Ineligibility for that one payment month was caused by income or
other circumstances in the corresponding budget month.
(e) If the initial month is computed prospectively as in paragraph
(a) of this section, the second month shall be prospective if the State
elects a 2-month retrospective budgeting system.
[47 FR 5679, Feb. 5, 1982]
Sec. 233.35 Computing the assistance payment under retrospective budgeting after the initial one or two months (AFDC).
The State plan for AFDC shall provide:
(a) After the initial one or two payment months of assistance under
Sec. 233.34, the amount of each subsequent month's payment shall be
computed retrospectively, i.e., shall be based on income and other
relevant circumstances in the corresponding budget month except as
provided in Sec. 233.20(a)(3)(iii). In any month for which an
individual will be determined eligible prospectively and will be added
to an existing AFDC assistance unit, the State must meet the
individual's needs to the same extent it would if the individual were an
applicant for AFDC.
(b) Except as provided in Sec. 233.34(b), for the first and second
payment month for which retrospective budgeting is used, the State shall
not count income from the budget month already considered for any
payment month determined prospectively which is not of a continuous
nature.
[47 FR 5679, Feb. 5, 1982]
Sec. 233.36 Monthly reporting (AFDC).
(a) Except as provided in paragraph (b) of this section, a State
plan for AFDC shall require the caretaker relative, or another person
designated by the State, to submit, on behalf of each assistance unit
whose members have earned income or recent work history, each assistance
unit which has income deemed to it from individuals living with the unit
who have earned income or a recent work history and, at State option,
other assistance units, a completed report form to the agency monthly
on:
(1) Budget month income, family composition, and other circumstances
relevant to the amount of the assistance payment; and
(2) Any changes in income, resources, or other relevant
circumstances affecting continued eligibility which the assistance unit
expects to occur in the current month or in future months.
(3) The income of a parent or a legal guardian of a minor parent, a
stepparent, or an alien sponsor, as well as the resources of an alien
sponsor, where appropriate.
(b) A State may exempt categories of recipients otherwise required
to report monthly from reporting each month with prior approval by the
Secretary if the State can demonstrate that not requiring these cases to
file monthly reports is cost effective. The Secretary will grant waivers
under this provision for a period up to one year, at the end of which
time the State may request an extension of the waiver. A decision by the
Secretary not to approve a request for an exemption is not appealable.
The plan shall include criteria for
[[Page 83]]
assuring (1) that exempted cases are unlikely to incur changes in
circumstances from month to month which would impact their eligibility r
amount of assistance and (2) that the administrative cost of requiring
those categories to report monthly will be greater than the program
savings which would accrue.
(c) States shall also direct recipients to report information as
defined in paragraph (a)(2) of this section to the agency as they become
aware of expected changes rather than waiting to inform the State on the
monthly report.
[47 FR 5679, Feb. 5, 1982 as amended at 49 FR 35602, Sept. 10, 1984; 57
FR 30160, July 8, 1992]
Sec. 233.37 How monthly reports are treated and what notices are required (AFDC).
(a) What happens if a completed monthly report is received on time.
When the agency receives a completed monthly report as specified in
Sec. 233.36, and if all eligibility conditions are met, it shall
process the payment. The agency shall notify the recipient of any
changes from the prior payment and the basis for its determinations.
This notice must meet the requirements of Sec. 205.10(a)(4)(i)(B) of
this chapter on adequate notice if the payment is being reduced or
assistance is terminated as a result of information provided in the
monthly report. The notice must be mailed to arrive no later than the
resulting payment or in lieu of the payment. A recipient has 10 days
from the date of the notice to request a hearing in order to receive
reinstatement.
(b) What happens if a completed monthly report is not received by
the agency. An agency may terminate assistance if it has received no
report or has received only an incomplete report as defined by the
State. In this case, the agency must send the recipient a notice meeting
the requirements of Sec. 205.10(a)(4)(i)(B) to arrive not later than
the date it would have made payment if the agency had received a
completed monthly report on time. If the recipient notifies the agency
and files a completed report within 10 days of the date of this notice,
the agency must accept the replacement form and make a payment based on
the information on the form if the information indicates that the person
is still eligible (without the applicable earned income disregards if
the State agency determines no good cause exists for failing to file a
timely report of earnings). If the recipient is found ineligible or
eligible for an amount less than the prior month's payment, the State
must promptly notify the recipient of his or her right to a fair hearing
and his or her right to have assistance reinstated. A recipient has 10
days from the date of the notice to request a hearing in order to
receive reinstatement.
(c) What happens if a completed monthly report is received but is
not timely. States must specify in their plans a definition of
timeliness related to the filing of a monthly report and the number of
days an individual has to report changes in earnings which impact
eligibility. States must inform recipients what constitutes timeliness
and that no disregard of earnings as described in Sec. 233.20(a)(11)
(i) and (ii)(B) ($30 and one-third, child care, and work expenses) will
be applied to any earnings which are not reported in a timely manner
without good cause. The State must provide recipients an opportunity to
show good cause for not filing a timely report of earnings. If the State
finds good cause, then applicable earned income disregards will be
applied in determining payment. If the State does not find good cause,
then applicable earned income disregards will not be applied. If the
recipient is found ineligible or eligible for an amount less than the
prior month's payment, the State must promptly notify the recipient of
his or her right to a fair hearing and his or her right to have
assistance reinstated. A recipient has 10 days from the date of the
notice to request a hearing in order to receive reinstatement.
[47 FR 5679, Feb. 5, 1982]
Sec. 233.38 Waiver of monthly reporting and retrospective budgeting requirements; AFDC.
(a) States may request waivers of the requirements at Sec. Sec.
233.31-233.37 to promote compatibility with monthly reporting and
budgeting requirements of the Food Stamp Act of 1977 as amended.
[[Page 84]]
(b) The Secretary will not approve requests for waivers unless the
information documenting the need for the waiver shows that the waiver
would simplify administration of both programs and would not result in a
net cost to the Federal government. Approvals for waivers will be for
periods up to one year, after which time the State may request an
extension of the waiver.
(c) Any decision by the Secretary not to approve a request for a
waiver is not appealable.
[49 FR 35602, Sept. 10, 1984]
Sec. 233.39 Age.
(a) Condition for plan approval. A State plan under title I or XVI
of the Social Security Act may not impose any age requirement of more
than 65 years.
(b) Federal financial participation. (1) Federal financial
participation is available in financial assistance provided to otherwise
eligible persons who were, for any portion of the month for which
assistance is paid:
(i) In OAA or AABD with respect to the aged, 65 years of age or
over;
(ii) In AFDC, under 18 years of age; or age 18 if a full-time
student in a secondary school, or in the equivalent level of vocational
or technical training, and reasonably expected to complete the program
before reaching age 19.
(iii) In AB or AABD with respect to the blind, any age;
(iv) In APTD or AABD with respect to the disabled, 18 years of age
or older.
(2) Federal determination of whether an individual meets the age
requirements of the Social Security Act will be made according to the
common-law method (under which a specific age is attained the day before
the anniversary of birth), unless the State plan specifies that the
popular usage method (under which an age is attained on the anniversary
of birth), is used.
(3) The State agency may adopt an arbitrary date such as July 1 as
the point from which age will be computed in all instances where the
month of an individual's birth is not available, but the year can be
established.
[36 FR 3866, Feb. 27, 1971. Redesignated and amended at 47 FR 5678, Feb.
5, 1982]
Sec. 233.40 Residence.
(a) Condition for plan approval. A State plan under title I, IV-A,
X, XIV, or XVI of the Social Security Act may not impose any residence
requirement which excludes any individual who is a resident of the State
except as provided in paragraph (b) of this section. For purposes of
this section:
(1) A resident of a State is one: (i) Who is living in the State
voluntarily with the intention of making his or her home there and not
for a temporary purpose. A child is a resident of the State in which he
or she is living other than on a temporary basis. Residence may not
depend upon the reason for which the individual entered the State,
except insofar as it may bear upon whether the individual is there
voluntarily or for a temporary purpose; or
(ii) Who, is living in the State, is not receiving assistance from
another State, and entered the State with a job commitment or seeking
employment in the State (whether or not currently employed). Under this
definition, the child is a resident of the State in which the caretaker
is a resident.
(2) Residence is retained until abandoned. Temporary absence from
the State, with subsequent returns to the State, or intent to return
when the purposes of the absence have been accomplished, does not
interrupt continuity of residence.
(b) Exception. A State plan under title I, X, XIV, or XVI need not
include an individual who has been absent from the State for a period in
excess of 90 consecutive days (regardless of whether the individual has
maintained his or her residence in the State during this period) until
he or she has been present in the State for a period of 30 consecutive
days (or a shorter period specified by the State) in the case of such
individual who has maintained residence in the State during such period
of absence or for a period of 90 consecutive days (or a shorter period
as specified by the State) in the case of any other such individual. An
individual thus excluded
[[Page 85]]
under any such plan may not, as a consequence of that exclusion, be
excluded from assistance under the State's title XIX plan if otherwise
eligible under the title XIX plan (see 42 CFR 436.403).
[45 FR 26962, Apr. 22, 1980]
Sec. 233.50 Citizenship and alienage.
A State plan under title I (OAA); title IV-A (AFDC); title X (AB);
title XIV (APTD); and title XVI (AABD-disabled) of the Social Security
Act shall provide that an otherwise eligible individual, dependent
child, or a caretaker relative or any other person whose needs are
considered in determining the need of the child or relative claiming
aid, must be either:
(a) A citizen, or
(b) An alien lawfully admitted for permanent residence or otherwise
permanently residing in the United States under color of law, including
certain aliens lawfully present in the United States as a result of the
application of the following provisions of the Immigration and
Nationality Act:
(1) Section 207(c), in effect after March 31, 1980--Aliens Admitted
as Refugees.
(2) Section 203(a)(7), in effect prior to April 1, 1980--Individuals
who were Granted Status as Conditional Entrant Refugees.
(3) Section 208--Aliens Granted Political Asylum by the Attorney
General.
(4) Section 212(d)(5)--Aliens Granted Temporary Parole Status by the
Attorney General, or
(c) An alien granted lawful temporary resident status pursuant to
section 201, 302, or 303 of the Immigration Reform and Control Act of
1986 (Pub. L. 99-603) who must be either:
(1) A Cuban and Haitian entrant as defined in paragraph (1) or
(2)(A) of section 501(e) of Pub. L. 96-422, as in effect on April 1,
1983, or
(2) An adult assistance applicant for OAA, AB, APTD, or AABD, or
(3) An applicant for AFDC who is not a Cuban and Haitian applicant
under paragraph (c)(1) of this section who was adjusted to lawful
temporary resident status more than five years prior to application.
All other aliens granted lawful temporary or permanent resident status,
pursuant to sections 201, 302, or 303 of the Immigration Reform and
Control Act of 1986, are disqualified for five years from the date
lawful temporary resident status is granted.
[47 FR 5680, Feb. 5, 1982; 47 FR 43383, Oct. 1, 1982, as amended at 52
FR 48689, Dec. 24, 1987 (interim); 53 FR 30433, Aug. 12, 1988 (final);
54 FR 10544, Mar. 14, 1989]
Sec. 233.51 Eligibility of sponsored aliens.
Definition: Sponsor is any person who, or any public or private
agency or organization that, executed an affidavit(s) of support or
similar agreement on behalf of an alien (who is not the child of the
sponsor or the sponsor's spouse) as a condition of the alien's entry
into the United States. Paragraphs (a) through (d) of this section apply
only to aliens who are sponsored by individuals and who filed
applications for the first time after September 30, 1981. Paragraphs (e)
and (f) apply only to aliens sponsored by public or private agencies or
organizations with respect to periods after October 1, 1984. A State
plan under title IV-A of the Act shall provide that:
(a) For a period of three years following entry for permanent
residence into the United States, a sponsored alien who is not exempt
under paragraph (g) of this section, shall provide the State agency with
any information and documentation necessary to determine the income and
resources of the sponsor and the sponsor's spouse (if applicable and if
living with the sponsor) that can be deemed available to the alien, and
obtain any cooperation necessary from the sponsor.
(b) The income and resources of a sponsor and the sponsor's spouse
shall be deemed to be the unearned income and resources of an alien for
three years following the alien's entry into the United States:
(1) Monthly income deemed available to the alien from the sponsor
and the sponsor's spouse not receiving AFDC or SSI shall be:
(i) The total monthly unearned and earned income of the sponsor and
sponsor's spouse reduced by 20 percent (not to exceed $175) of the total
of any amounts received by them in the month as wages or salary or as
net earnings from self-employment.
[[Page 86]]
(ii) The amount described in paragraph (b)(1)(i) of this section
reduced by:
(A) The cash needs standard under the plan in the alien's State of
residence for a family of the same size and composition as the sponsor
and those other people living in the same household as the sponsor who
are or could be claimed by the sponsor as dependents to determine his or
her Federal personal income tax liability but whose needs are not taken
into account in making a determination under Sec. 233.20 of this
chapter;
(B) Any amounts actually paid by the sponsor or sponsor's spouse to
people not living in the household who are or could be claimed by them
as dependents to determine their Federal personal income tax liability;
and
(C) Actual payments of alimony or child support, with respect to
individuals not living in the household.
(2) Monthly resources deemed available to the alien from the sponsor
and sponsor's spouse shall be the total amount of their resources
determined as if they were applying for AFDC in the alien's State of
residence, less $1500.
(c) In any case where a person is the sponsor of two or more aliens,
the income and resources of the sponsor and sponsor's spouse, to the
extent they would be deemed the income and resources of any one of the
aliens under the provisions of this section, shall be divided equally
among the sponsored aliens.
(d) Income and resources which are deemed to a sponsored alien shall
not be considered in determining the need of other unsponsored members
of the alien's family except to the extent the income or resources are
actually available.
(e) For a period of three years following entry for permanent
residence into the United States, any alien who is not exempt under
paragraph (g) of this section and has been sponsored by a public or
private agency or organization, shall be ineligible for assistance
unless the State agency determines (in accordance with paragraph (f))
that the sponsor no longer exists or has become unable to meet the
alien's needs.
(f) The State plan shall set forth the criteria the State agency
will use in determining whether an agency or organization no longer
exists or is unable to meet the alien's needs and the documentation the
agency will require of the alien in making such determination. The
sponsored alien shall provide the State agency with any information and
documentation necessary for such determination and obtain any
cooperation necessary from the sponsor.
(g) The provisions of this section shall not apply to any alien who
is:
(1) Admitted as a conditional entrant refugee to the United States
as a result of the application, of the provisions of section 203(a)(7)
(in effect prior to April 1, 1980) of the Immigration and Nationality
Act;
(2) Admitted as a refugee to the United States as a result of the
application of the provisions of section 207(c) (in effect after March
31, 1980) of the Immigration and Nationality Act;
(3) Paroled into the United States as a refugee under section
212(d)(5) of the Immigration and Nationality Act;
(4) Granted political asylum by the Attorney General under section
208 of the Immigration and Nationality Act;
(5) A Cuban or Haitian entrant, as defined in section 501(e) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422); or
(6) The dependent child of the sponsor or sponsor's spouse.
(h) The Secretary shall make information necessary to make a
determination under this section and supplied under agreement with the
Secretary of State and the Attorney General, available upon request to a
concerned State Agency.
[47 FR 5680, Feb. 5, 1982; 47 FR 43383, Oct. 1, 1982; 47 FR 47828, Oct.
28, 1982; 49 FR 35602, Sept. 10, 1984; 57 FR 30160, July 8, 1992]
Sec. 233.52 Overpayment to aliens.
A State Plan under title IV-A of the Social Security Act, shall
provide that:
(a) Any sponsor of an alien and the alien shall be jointly and
severally liable for any overpayment of aid under the State plan made to
the alien during the three years after the alien's entry into the United
States due to the sponsor's failure to provide correct information under
the provisions of Sec. 233.51,
[[Page 87]]
except as provided in paragraph (b) of this section.
(b) When a sponsor is found to have good cause or to be without
fault (as defined in the State plan) for not providing information to
the agency, the sponsor will not be held liable for the overpayment and
recovery will not be made from this sponsor.
(c) An overpayment for which the alien or the sponsor and the alien
are liable (as described in paragraphs (a) and (b) of this section)
shall be repaid to the State or recovered in accordance with Sec.
233.20(a)(13). If the agency is unable to recover the overpayment
through this method, funds to reimburse the agency for the overpayment
shall be withheld from future payments to which the alien or the alien
and the individual sponsor are entitled under:
(1) Any State administered or supervised program established by the
Social Security Act, or
(2) Any federally administered cash benefit program established by
the Social Security Act.
[47 FR 5680, Feb. 5, 1982 as amended at 49 FR 35602, Sept. 10, 1984]
Sec. 233.53 Support and maintenance assistance (including home energy assistance) in AFDC.
(a) General. At State option, certain support and maintenance
assistance (including home energy assistance) may be excluded from
income and resources.
(b) Definitions. The following definitions are limited to the
support and maintenance assistance provisions of this section.
Appropriate State agency means the agency designated by the chief
executive officer of the State to handle the State's responsibilities
with respect to support and maintenance assistance under paragraph (c)
of this section.
Based on need means that the assistance is given to or on behalf of
an applicant or recipient for the purpose of support and maintenance
(including home energy) and meets the criteria established by the State
for determining the need for such assistance.
In kind assistance means assistance furnished in any form except
direct cash payments to an applicant or recipient or direct payments to
an applicant or recipient through other financial instruments which are
convertible to cash.
Private, nonprofit organization means a religious, charitable,
educational, or other organization such as described in section 501(c)
of the Internal Revenue Code of 1954. (Actual tax exempt certification
by IRS is not necessary).
Rate-of-return entity means an entity whose revenues are primarily
received from the entity's charges to the public for goods or services,
and such charges are based on rates regulated by a State or Federal
governmental body.
Support and maintenance assistance means any assistance designed to
meet the expenses of day to day living. Support and maintenance
assistance includes home energy assistance. Home energy assistance means
any assistance related to meeting the cost of heating or cooling a home.
Home energy assistance includes such items as payments for utility
service or bulk fuels; assistance in kind such as portable heaters,
fans, blankets, storm doors, or other items which help reduce the costs
of heating and cooling such as conservation or weatherization materials
and services; etc.
(c) Requirements for State Plans. If a State elects to exclude from
income and resources support and maintenance assistance, the State plan
for AFDC must as specified below:
(1) Provide that an appropriate State agency will certify that
support and maintenance assistance is based on need (as defined in
paragraph (b) of this section), and that such certification will be
accepted for purposes of determining eligibility for and the amount of
payments under the AFDC program.
(2) Provide that in joint AFDC/SSI households, support and
maintenance assistance furnished to the household which is not excluded
under this paragraph will be prorated on a reasonable basis to determine
the amount provided to the AFDC assistance unit. The State plan must
describe the method that will be used to prorate the assistance in these
circumstances.
[[Page 88]]
(3) Provide that the types and amount of support and maintenance
assistance that are excluded when received by an AFDC applicant or
recipient will also be excluded in determining the income and resources
of a parent, stepparent, spouse or alien sponsor whose income is
considered available to an AFDC applicant or recipient.
(4) Provide that the State may exclude, from income and resources,
support and maintenance assistance (as defined in paragraph (b) of this
section) which the appropriate State agency certifies is based on need,
if the assistance is furnished by:
(i) A supplier of home heating gas or oil, regardless of whether the
assistance is in cash or in kind; or
(ii) A municipal utility providing home energy, regardless of
whether the assistance is in cash or in kind; or
(iii) A rate-of-return entity which provides home energy, regardless
of whether the assistance is in cash or in kind; or
(iv) A private nonprofit organization, but only if such assistance
is in kind.
(5) Provide that, if the State elects to exclude from income and
resources any support and maintenance assistance, the State plan must:
(i) Describe the criteria that will be used to determine the need
for the assistance;
(ii) Identify the types and amounts of assistance which will be
excluded; and
(iii) Provide that any limitations will be made on a reasonable
basis.
[51 FR 39533, Oct. 29, 1986, as amended at 56 FR 64204, Dec. 9, 1991]
Sec. 233.60 Institutional status.
(a) Federal financial participation. (1) Federal financial
participation under title I, X, XIV, or XVI of the Social Security Act
is not available in payments to or in behalf of any individual who is an
inmate of a public institution except as a patient in a medical
institution.
(2)(i) Federal financial participation under title X or XIV of the
Social Security Act is not available in payments to or in behalf of any
individual who is a patient in an institution for tuberculosis or mental
diseases.
(ii) Federal financial participation under title XVI of the Social
Security Act is not available in payments to or in behalf of any
individual who has not attained 65 years of age and who is a patient in
an institution for tuberculosis or mental diseases.
(3) For purposes of this paragraph:
(i) Federal financial participation is available in payments for the
month in which an individual (if otherwise eligible) became an inmate of
a public institution, or a patient in an institution for tuberculosis or
mental diseases;
(ii) Whether an institution is one for tuberculosis or mental
diseases will be determined by whether its overall character is that of
a facility established and maintained primarily for the care and
treatment of individuals with tuberculosis or mental diseases (whether
or not it is licensed);
(iii) An institution for the mentally retarded is not an institution
for mental diseases;
(iv) An individual on conditional release or convalescent leave from
an institution for mental diseases is not considered to be a patient in
such institution.
(b) Definitions. For purposes of Federal financial participation
under paragraph (a) of this section:
(1) Institution means an establishment which furnishes (in single or
multiple facilities) food and shelter to four or more persons unrelated
to the proprietor, and in addition, provides some treatment or services
which meet some need beyond the basic provision of food and shelter.
(2) In an institution refers to an individual who is admitted to
participate in the living arrangements and to receive treatment or
services provided there which are appropriate to his requirements.
(3) Public institution means an institution that is the
responsibility of a governmental unit or over which a governmental unit
exercises administrative control.
(4) Inmate of a public institution means a person who is living in a
public institution. An individual is not considered an inmate when:
[[Page 89]]
(i) He is in a public educational or vocational training
institution, for purposes of securing education or vocational training,
or
(ii) He is in a public institution for a temporary emergent period
pending other arrangements appropriate to his needs.
(5) Medical institution means an institution which:
(i) Is organized to provide medical care, including nursing and
convalescent care;
(ii) Has the necessary professional personnel, equipment, and
facilities to manage the medical, nursing, and other health needs of
patients on a continuing basis in accordance with accepted standards;
(iii) Is authorized under State law to provide medical care;
(iv) Is staffed by professional personnel who have clear and
definite responsibility to the institution in the provision of
professional medical and nursing services including adequate and
continual medical care and supervision by a physician; sufficient
registered nurse or licensed practical nurse supervision and services
and nurse aid services to meet nursing care needs; and appropriate
guidance by a physician(s) on the professional aspects of operating the
facility.
(6) Institution for tuberculosis means an institution which is
primarily engaged in providing diagnosis, treatment, or care of persons
with tuberculosis, including medical attention, nursing care, and
related services.
(7) Institution for mental diseases means an institution which is
primarily engaged in providing diagnosis, treatment or care of persons
with mental diseases, including medical attention, nursing care, and
related services.
(8) Patient means an individual who is in need of and receiving
professional services directed by a licensed practitioner of the healing
arts toward maintenance, improvement, or protection of health, or
alleviation of illness, disability, or pain.
[36 FR 3867, Feb. 27, 1971]
Sec. 233.70 Blindness.
(a) State plan requirements. A State plan under title X or XVI of
the Social Security Act must:
(1) Contain a definition of blindness in terms of ophthalmic
measurement. The following definition is recommended: An individual is
considered blind if he has central visual acuity of 20/200 or less in
the better eye with correcting glasses or a field defect in which the
peripheral field has contracted to such an extent that the widest
diameter of visual field subtends an angular distance of no greater than
20[deg].
(2) Provide, in any instance in which a determination is to be made
whether an individual is blind or continues to be blind as defined under
the State plan, that there will be an initial examination or re-
examination performed by either a physician skilled in the diseases of
the eye or by an optometrist, whichever the individual so selects.
(i) No examination is necessary when both eyes are missing.
(ii) Where an initial eye examination or re-examination is
necessary, the physician or optometrist conducting such examination will
submit to the State agency a report thereof, on such forms and in such
manner, as may be prescribed for such purpose. A determination whether
the individual meets the State's definition of blindness under the State
plan will be based upon a review of such eye examination report as
provided for in paragraph (a)(3) of this section, and other information
or additional examination reports as the State deems necessary.
(3) Provide that each initial eye examination report and any
subsequent re-examination report will be reviewed by a State reviewing
physician skilled in the diseases of the eye (e.g., an ophthalmologist
or an eye, ear, nose and throat specialist). Such physician is
responsible for making the agency's decision that the applicant or
recipient does or does not meet the State's definition of blindness, and
for determining if and when reexaminations are necessary in periodic
reviews of eligibility, as required in Sec. 206.10(a)(9)(iii) of this
chapter.
(b) Federal financial participation--(1) Assistance payments.
Federal financial participation is available in assistance provided to
or in behalf of any otherwise eligible person who is blind under
[[Page 90]]
the State's title X or XVI plan. Blindness may be considered as
continuing until a determination by the reviewing physician establishes
the fact that the recipient's vision has improved beyond the State's
definition of blindness set forth under its State title of X or XVI
plan.
(2) Administrative expenses. Federal financial participation is
available in any expenditures incident to the eye examination necessary
to determine whether an individual is blind.
[36 FR 3867, Feb. 27, 1971, as amended at 40 FR 25819, June 19, 1975]
Sec. 233.80 Disability.
(a) State plan requirements. A State plan under title XIV or XVI of
the Social Security Act must:
(1) Contain a definition of permanently and totally disabled,
showing that:
(i) ``Permanently'' is related to the duration of the impairment or
combination of impairments; and
(ii) ``Totally'' is related to the degree of disability.
The following definition is recommended:
``Permanently and totally disabled'' means that the individual has
some permanent physical or mental impairment, disease, or loss, or
combination thereof, this substantially precludes him from engaging in
useful occupations within his competence, such as holding a job.
Under this definition:
``Permanently'' refers to a condition which is not likely to improve
or which will continue throughout the lifetime of the individual; it may
be a condition which is not likely to respond to any known therapeutic
procedures, or a condition which is likely to remain static or to become
worse unless certain therapeutic measures are carried out, where
treatment is unavailable, inadvisable, or is refused by the individual
on a reasonable basis; ``permanently'' does not rule out the possibility
of vocational rehabilitation or even possible recovery in light of
future medical advances or changed prognosis; in this sense the term
refers to a condition which continues indefinitely, as distinct from one
which is temporary or transient;
``Totally'' involves considerations in addition to those verified
through the medical findings, such as age, training, skills, and work
experience, and the probable functioning of the individual in his
particular situation in light of his impairment; an individual's
disability would usually be tested in relation to ability to engage in
remunerative employment; the ability to keep house or to care for others
would be the appropriate test for (and only for) individuals, such as
housewives, who were engaged in this occupation prior to the disability
and do not have a history of gainful employment; eligibility may
continue, even after a period of rehabilitation and readjustment, if the
individual's work capacity is still very considerably limited (in
comparison with that of a normal person) in terms of such factors as the
speed with which he can work, the amount he can produce in a given
period of time, and the number of hours he is able to work.
(2) Provide for the review of each medical report and social history
by technically competent persons--not less than a physician and a social
worker qualified by professional training and pertinent experience--
acting cooperatively, who are responsible for the agency's decision that
the applicant does or does not meet the State's definition of permanent
and total disability. Under this requirement:
(i) The medical report must include a substantiated diagnosis, based
either on existing medical evidence or upon current medical examination;
(ii) The social history must contain sufficient information to make
it possible to relate the medical findings to the activities of the
``useful occupation'' and to determine whether the individual is totally
disabled, and
(iii) The review physician is responsible for setting dates for
reexamination; the review team is responsible for reviewing
reexamination reports in conjunction with the social data to determine
whether disabled recipients whose health condition may improve continue
to meet the State's definition of permanent and total disability.
(3) Provide for cooperative arrangements with related programs, such
as vocational rehabilitation services.
(b) Federal financial participation--(1) Assistance payments.
Federal financial participation is available in payments to or in behalf
of any otherwise eligible individual who is permanently and totally
disabled. Permanent and total disability may be considered as continuing
until the review team establishes the fact that the recipient's
disability is no longer within the State's definition of permanent and
total disability.
[[Page 91]]
(2) Administrative expenses. Federal financial participation is
available in any expenditures incident to the medical examinations
necessary to determine whether an individual is permanently and totally
disabled.
[36 FR 3867, Feb. 27, 1971]
Sec. 233.90 Factors specific to AFDC.
(a) State plan requirements. A State plan under title IV-A of the
Social Security Act shall provide that:
(1) The determination whether a child has been deprived of parental
support or care by reason of the death, continued absence from the home,
or physical or mental incapacity of a parent, or (if the State plan
includes such cases) the unemployment of his or her parent who is the
principal earner will be made only in relation to the child's natural or
adoptive parent, or in relation to the child's stepparent who is
married, under State law, to the child's natural or adoptive parent and
is legally obligated to support the child under State law of general
applicability which requires stepparents to support stepchildren to the
same extent that natural or adoptive parents are required to support
their children. Under this requirement, the inclusion in the family, or
the presence in the home, of a ``substitute parent'' or ``man-in-the-
house'' or any individual other than one described in this paragraph is
not an acceptable basis for a finding of ineligibility or for assuming
the availability of income by the State; and
(2) Where it has reason to believe that a child receiving aid is in
an unsuitable environment because of known or suspected instances of
physical or mental injury, sexual abuse or exploitation, or negligent
treatment or maltreatment of such child, under circumstances which
indicate the child's health or welfare is threatened, the State or local
agency will:
(i) Bring such condition to the attention of a court, law-
enforcement agency, or other appropriate agency in the State, providing
whatever data it has with respect to the situation;
(ii) In reporting such conditions, use the same criteria as are used
in the State for all other parents and children; and
(iii) Cooperate with the court or other agency in planning and
implementing action in the best interest of the child.
(b) Conditions for plan approval. (1) A child may not be denied AFDC
either initially or subsequently ``because of the conditions of the home
in which the child resides'', or because the home is considered
``unsuitable'', unless ``provision is otherwise made pursuant to a State
statute for adequate care and assistance with respect to such child''.
(Section 404(b) of the Social Security Act.)
(2) An otherwise eligible child who is under the age of 18 years may
not be denied AFDC, regardless of whether she attends school (unless she
is required to participate in the JOBS program pursuant to Sec. 250.30
and she is assigned to educational activities) or makes satisfactory
grades.
(3) A state may elect to include in its AFDC program children age 18
who are full-time students in a secondary school, or in the equivalent
level of vocational or technical training, and who may reasonably be
expected to complete the program before reaching age 19.
(4)(i) A child may not be denied AFDC either initially or
subsequently because a parent or other caretaker relative fails to
cooperate with the child support agency in performing any of the
activities needed to:
(A) Establish the paternity of a child born out of wedlock; or
(B) Obtain support from a person having a legal duty to support the
child.
(ii) Any parent or caretaker relative who fails to so cooperate
shall be treated in accordance with Sec. 232.12 of this chapter.
(5) [Reserved]
(6) An otherwise eligible child may not be denied AFDC if a parent
is mentally or physically incapacitated as defined in paragraph
(c)(1)(iv) of this section.
(c) Federal financial participation. (1) Federal financial
participation under title IV-A of the Social Security Act in payments
with respect to a ``dependent child,'' as defined in section 406(a) of
the Act, is available within the following interpretations:
[[Page 92]]
(i) Needy child deprived by reason of. The phrase ``needy child * *
* deprived * * * by reason of'' requires that both need and deprivation
of parental support or care exist in the individual case. The phrase
encompasses the situation of any child who is in need and otherwise
eligible, and whose parent--father or mother--either has died, has a
physical or mental incapacity, or is continually absent from the home.
This interpretation is equally applicable whether the parent was the
chief bread winner or devoted himself or herself primarily to the care
of the child, and whether or not the parents were married to each other.
The determination whether a child has been deprived of parental support
or care is made in relation to the child's natural parent or, as
appropriate, the adoptive parent or stepparent described in paragraph
(a) of this section.
(ii) Death of a parent. If either parent of a child is deceased, the
child is deprived of parental support or care, and may, if he is in need
and otherwise eligible, be included within the scope of the program.
(iii) Continued absence of the parent from the home. Continued
absence of the parent from the home constitutes the reason for
deprivation of parental support or care when the parent is out of the
home, the nature of the absence is such as either to interrupt or to
terminate the parent's functioning as a provider of maintenance,
physical care, or guidance for the child, and the known or indefinite
duration of the absence precludes counting on the parent's performance
of the function of planning for the present support or care of the
child. If these conditions exist, the parent may be absent for any
reason, and may have left only recently or some time previously; except
that a parent whose absence is occasioned solely by reason of the
performance of active duty in the uniformed services of the United
States (as defined in section 101(3) of Title 37, United States code) is
not considered absent from the home. A parent who is a convicted
offender but is permitted to live at home while serving a court-imposed
sentence by performing unpaid public work or unpaid community service
during the workday is considered absent from the home.
(iv) ``Physical or mental incapacity''. ``Physical or mental
incapacity'' of a parent shall be deemed to exist when one parent has a
physical or mental defect, illness, or impairment. The incapacity shall
be supported by competent medical testimony and must be of such a
debilitating nature as to reduce substantially or eliminate the parent's
ability to support or care for the otherwise eligible child and be
expected to last for a period of at least 30 days. In making the
determination of ability to support, the agency shall take into account
the limited employment opportunities of handicapped individuals.
A finding of eligibility for OASDI or SSI benefits, based on disability
or blindness is acceptable proof of incapacity for AFDC purposes.
(v) ``Living with [a specified relative] in a place of residence
maintained * * * as his * * * own home''. (A) A child may be considered
to meet the requirement of living with one of the relatives specified in
the Act if his home is with a parent or a person in one of the following
groups:
(1) Any blood relative, including those of half-blood, and including
first cousins, nephews, or nieces, and persons of preceding generations
as denoted by prefixes of grand, great, or great-great.
(2) Stepfather, stepmother, stepbrother, and stepsister.
(3) Person who legally adopt a child or his parent as well as the
natural and other legally adopted children of such persons, and other
relatives of the adoptive parents in accordance with State law.
(4) Spouses of any persons named in the above groups even after the
marriage is terminated by death or divorce.
(B) A home is the family setting maintained or in process of being
established, as evidenced by assumption and continuation of
responsibility for day to day care of the child by the relative with
whom the child is living. A home exists so long as the relative
exercises responsibility for the care and control of the child, even
though either the child or the relative is temporarily
[[Page 93]]
absent from the customary family setting. Within this interpretation,
the child is considered to be ``living with'' his relative even though:
(1) He is under the jurisdiction of the court (e.g., receiving
probation services or protective supervision); or
(2) Legal custody is held by an agency that does not have physical
possession of the child.
(2) Federal financial participation is available in:
(i) Initial payments made on behalf of a child who goes to live with
a relative specified in section 406(a)(1) of the Social Security Act
within 30 days of the receipt of the first payment, provided payments
are not made for concurrent period for the same child in the home of
another relative or as foster care under title IV-E;
(ii) Payments made for the entire month in the course of which a
child leaves the home of a specified relative, provided payments are not
made for a concurrent period for the same child in the home of another
relative or as foster care under title IV-E; and
(iii) Payments made to persons acting for relatives specified in
section 406(a)(1) of the Act in emergency situations that deprive the
child of the care of the relative through whom he has been receiving
aid, for a temporary period necessary to make and carry out plans for
the child's continuing care and support.
(iv) At State option, (A) payments with respect to a pregnant woman
with no other children receiving assistance, and additionally, at State
option, (B) payments for the purpose of meeting special needs occasioned
by or resulting from pregnancy both for the pregnant woman with no other
children as well as for the pregnant woman receiving AFDC. However, for
both paragraphs (c)(2)(iv) (A) and (B) of this section it must be
medically verified that the child is expected to be born in the month
such payments are made or within the three-month period following such
month of payment, and who, if such child had been born and was living
with her in the month of payment, would be eligible for aid to families
with dependent children. Federal financial participation is not
available to meet the needs of the unborn child. (Refer to Medicaid
regulations at 42 CFR 435.115 for Medicaid coverage of pregnant women.)
(3) Federal financial participation (at the 50 percent rate) is
available in any expenses incurred in establishing eligibility for AFDC,
including expenses incident to obtaining necessary information to
determine the existence of incapacity of a parent or pregnancy of a
mother.
[36 FR 3868, Feb. 27, 1971 as amended at 39 FR 34038, Sept. 23, 1974; 40
FR 27156, June 26, 1975; 44 FR 12424, Mar. 7, 1979; 47 FR 5681, Feb. 5,
1982; 47 FR 41114, Sept. 17, 1982; 48 FR 28409, June 21, 1983; 51 FR
9206, Mar. 18, 1986; 52 FR 28824, Aug. 4, 1987; 54 FR 42243, Oct. 13,
1989; 58 FR 49218, Sept. 22, 1993; 59 FR 26142, May 19, 1994]
Sec. 233.100 Dependent children of unemployed parents.
(a) Requirements for State Plans. If a State wishes to provide AFDC
for children of unemployed parents, the State plan under title IV-A of
the Social Security Act must:
(1) Include a definition of an unemployed parent who is the
principal earner which shall apply only to families determined to be
needy in accordance with the provisions in Sec. 233.20. Such definition
must include any such parent who:
(i) Is employed less than 100 hours a month; or
(ii) Exceeds that standard for a particular month, if the work is
intermittent and the excess is of a temporary nature as evidenced by the
fact that he or she was under the 100-hour standard for the prior 2
months and is expected to be under the standard during the next month;
except that at the option of the State, such definition need not include
a principal earner who is unemployed because of participation in a labor
dispute (other than a strike) or by reason of conduct or circumstances
which result or would result in disqualification for unemployment
compensation under the State's unemployment compensation law.
(2) Include a definition of a dependent child which shall include
any child of an unemployed parent (as defined by the State pursuant to
paragraph (a)(1) of this section) who would be, except for the fact that
his parent is not dead,
[[Page 94]]
absent from the home, or incapacitated, a dependent child under the
State's plan approved under section 402 of the Act.
(3) Provide for payment of aid with respect to any dependent child
(as defined by the State pursuant to paragraphs (a)(2) of this section)
when the conditions set forth in paragraphs (a)(3) (i), (ii), (iii), and
(vii) of this section are met:
(i) His or her parent who is the principal earner has been
unemployed for at least 30 days prior to the receipt of such aid.
(ii) Such parent has not without good cause, within such 30-day
period prior to the receipt of such aid, refused a bona fide offer of
employment or training for employment. Before it is determined that such
parent has refused a bona fide offer of employment or training for
employment without good cause, the agency must make a determination that
such an offer was actually made. (In the case of offers of employment
made through the public employment or manpower agencies, the
determination as to whether the offer was bona fide, or whether there
was good cause to refuse it, will be made by that office or agency.) The
parent must be given an opportunity to explain why such offer was not
accepted. Questions with respect to the following factors must be
resolved:
(a) That there was a definite offer of employment at wages meeting
any applicable minimum wage requirements and which are customary for
such work in the community;
(b) Any questions as to the parent's inability to engage in such
employment for physical reasons or because he has no way to get to or
from the particular job; and
(c) Any questions of working conditions, such as risks to health,
safety, or lack of worker's compensation protection.
(iii) Such parent (a) has six or more quarters of work (as defined
in paragraph (a)(3)(iv) of this section), within any 13-calendar-quarter
period ending within 1 year prior to the application for such aid, or
(b) within such 1-year period, received unemployment compensation under
an unemployment compensation law of a State or of the United States, or
was qualified under the terms of paragraph (a)(3)(v) of this section)
for such compensation under the State's unemployment compensation law.
(iv) A ``quarter of work'' with respect to any individual means a
period (of 3 consecutive calendar months ending on March 31, June 30,
September 30, or December 31) in which he or she received earned income
of not less than $50 (or which is a ``quarter of coverage'' as defined
in section 213(a)(2) of the Act), or in which he or she participated in
a community work experience program under section 409 of the Act or the
work incentive program established under title IV-C of the Act.
(v) An individual shall be deemed ``qualified'' for unemployment
compensation under the State's unemployment compensation law if he would
have been eligible to receive such benefits upon filing application, or
he performed work not covered by such law which, if it had been covered,
would (together with any covered work he performed) have made him
eligible to receive such benefits upon filing application.
(vi)(A) The ``parent who is the principal earner'' means, in the
case of any child, whichever parent, in a home in which both parents of
such child are living, earned the greater amount of income in the 24-
month period the last month of which immediately precedes the month in
which an application is filed for aid under this part on the basis of
the unemployment of a parent. If the State cannot secure primary
evidence of earnings for this period, the State shall designate the
principal earner, using the best evidence available. The earnings of
each parent are considered in determining the principal earner
regardless of when their relationship began. The principal earner so
defined remains the principal earner for each consecutive month for
which the family receives such aid on the basis of such application.
This requirement applies to both new applicants and current AFDC
unemployed parent families who were eligible and receiving aid prior to
October 1, 1981.
(B) If both parents earned an identical amount of income (or earned
no income) in such 24-month period, the
[[Page 95]]
State shall designate which parent shall be the principal earner.
(vii) The parent who is the principal earner (unless exempt under
Sec. 240.14) has met the requirements for participation in an
employment search program under part 240 of this chapter.
(4) Provide for entering into cooperative arrangements with the
State agency responsible for administering or supervising the
administration of vocational education to assure maximum utilization of
available public vocational education services and facilities in the
State to encourage the retraining of individuals capable of being
retrained.
(5) Provide for the denial of such aid to any such dependent child
or the relative specified in section 406(a)(1) of the Act with whom such
child is living,
(i) If and for so long as such child's parent, unless exempt under
Sec. 224.20, is not currently registered for the work incentive program
or if exempt under Sec. 224.20(b)(6), is not currently registered with
a public employment office in the State, except that in a State with an
approved JOBS plan under Sec. 250.20, such child's parent, unless
exempt under Sec. 250.30(b), must be currently participating (or
available for participation) in a program under part 250, or, if he is
exempt under Sec. 250.30(b)(5), must be registered with a public
employment office in the State, and
(ii) With respect to any week for which such child's parent
qualifies for unemployment compensation under an unemployment
compensation law of the State or of the United States but refuses to
apply for or accept such unemployment compensation, and
(iii) If the parent who is the principal earner (unless exempt under
Sec. 240.14) fails to meet the requirements for participation in a
program of employment search established under part 240 of this chapter.
(6) Provide that within 30 days after the receipt of such aid,
unemployed principal earners will be certified for participation in the
Work Incentive program under part 224 or, if the State IV-A agency has
an approved JOBS plan pursuant to Sec. 250.20, will participate or
apply for participation in a program under part 250 unless the program
is not available in the area where the parent is living.
(b) [Reserved]
(c) Federal financial participation. (1) Federal financial
participation is available in payments authorized in accordance with the
State plan approved under section 402 of the Act as aid to families with
dependent children with respect to a child.
(i) Who meets the requirements of section 406(a)(2) of the Act;
(ii) Who is living with any of the relatives specified in section
406(a)(1) of the Act in a place of residence maintained by one or more
of such relatives as his (or their) own home;
(iii) Who has been deprived of parental support or care by reason of
the fact that his or her parent who is the principal earner is employed
less than 100 hours a month; or exceeds that standard for a particular
month if his or her work is intermittent and the excess is of a
temporary nature as evidenced by the fact that he or she was under the
100-hour standard for 2 prior months and is expected to be under the
standard during the next month.
(iv) Whose parent who is the principal earner (a) has six or more
quarters of work (as defined in paragraph (a)(3)(iv) of this section)
within any 13-calendar-quarter period ending within 1 year prior to the
application for such aid, (b) within such 1-year period, received
unemployment compensation under an unemployment compensation law of a
State or of the United States, or was qualified (under the terms of
paragraph (a)(3)(v) of this section) for such compensation under the
State's unemployment compensation law; and
(v) Whose parent who is the principal earner (a) is currently
registered with the WIN program unless exempt or is registered with the
public employment office in the State if exempt from WIN registration
under Sec. 224.20(b)(6) or because there is no WIN program in which he
can effectively participate; and (b) has not refused to apply for or
accept unemployment compensation with respect to any week for which such
child's parent qualifies for unemployment compensation under an
unemployment compensation law of a State or of the United States.
[[Page 96]]
(2) The State may not include in its claim for Federal financial
participation payments made as aid under the plan with respect to a
child who meets the conditions set forth in paragraph (c)(1) of this
section, where such payments were made.
(i) For any part of the 30-day period specified in paragraph
(a)(3)(i) of this section;
(ii) For such 30-day period if during that period the parent refused
without good cause a bona fide offer of employment or training for
employment;
(iii) For any period beginning with the 31st day after receipt of
aid, if and for as long as no action is taken during the period to
certify the parent for participation in the Work Incentive program under
part 224, or if the State IV-A agency has an approved JOBS plan pursuant
to Sec. 250.20, no action is taken during the period to undertake
appropriate steps directed toward the participation of such parent in a
program under part 250; and
(iv) For any part of the sanction period imposed under Sec. 240.22
(for failure to meet the requirements for participation in the
employment search program).
(d) For all States (other than Puerto Rico, American Samoa, Guam,
and the Virgin Islands) the provisions of this section are suspended
through September 30, 1998. For Puerto Rico, American Samoa, Guam, and
the Virgin Islands, the provisions of this section are suspended from
October 1, 1992, through September 30, 1998.
[34 FR 1146, Jan. 24, 1969, as amended at 36 FR 13604, July 22, 1971; 38
FR 18549, July 12, 1973; 38 FR 26608, Sept. 24, 1973; 46 FR 46769, Sept.
21, 1981; 47 FR 5681, Feb. 5, 1982; 47 FR 41114, Sept. 17, 1982; 47 FR
43383, Oct. 1, 1982; 48 FR 28409, June 21, 1983; 51 FR 9206, Mar. 18,
1986; 54 FR 42244, Oct. 13, 1989; 57 FR 30426, July 9, 1992]
Sec. 233.101 Dependent children of unemployed parents.
(a) Requirements for State Plans. Effective October 1, 1990 (for
Puerto Rico, American Samoa, Guam, and the Virgin Islands, October 1,
1992), a State plan must provide for payment of AFDC for children of
unemployed parents. A State plan under title IV-A for payment of such
aid must:
(1) Include a definition of an unemployed parent who is the
principal earner which shall apply only to families determined to be
needy in accordance with the provisions in Sec. 233.20 of this part.
Such definition must have a reasonable standard for measuring
unemployment and, at a minimum, include any such parent who:
(i) Is employed less than 100 hours a month; or
(ii) Exceeds that standard for a particular month, if the work is
intermittent and the excess is of a temporary nature as evidenced by the
fact that he or she was under the 100-hour standard for the prior 2
months and is expected to be under the standard during the next month;
except that at the option of the State, such definition need not include
a principal earner who is unemployed because of participation in a labor
dispute (other than a strike) or by reason of conduct or circumstances
which result or would result in disqualification for unemployment
compensation under the State's unemployment compensation law.
(2) Include a definition of a dependent child which shall include
any child of an unemployed parent (as defined by the State pursuant to
paragraph (a)(1) of this section) who would be, except for the fact that
his parent is not dead, absent from the home, or incapacitated, a
dependent child under the State's plan approved under section 402 of the
Act.
(3) Provide for payment of aid with respect to any dependent child
(as defined by the State pursuant to paragraph (a)(2) of this section)
when the conditions set forth in paragraphs (a)(3)(i), (a)(3)(ii), and
(a)(3)(iii) of this section are met.
(i) His or her parent who is the principal earner has been
unemployed for at least 30 days prior to the receipt of such aid;
(ii) Such parent has not without good cause, within such 30-day
period prior to the receipt of such aid, refused a bona fide offer of
employment or training for employment. Before it is determined that such
parent has refused a bona fide offer of employment or training for
employment without good cause, the agency must make a determination that
such offer was actually
[[Page 97]]
made. (In the case of offers of employment made through the public
employment or manpower agencies, the determination as to whether the
offer was bona fide, or whether there was good cause to refuse it, shall
be made by the title IV-A agency. The IV-A agency may accept the
recommendations of such agencies.) The parent must be given an
opportunity to explain why such offer was not accepted. Questions with
respect to the following factors must be resolved:
(A) That there was a definite offer of employment at wages meeting
any applicable minimum wage requirements and which are customary for
such work in the community;
(B) Any questions as to the parent's inability to engage in such
employment for physical reasons or because he has no way to get to or
from the particular job; and
(C) Any questions of working conditions, such as risks to health,
safety, or lack of worker's compensation protection.
(iii) Such parent:
(A) Has six or more quarters of work (as defined in paragraph
(a)(3)(iv) of this section), within any 13-calendar-quarter period
ending within one year prior to the application for such aid, or
(B) Within such 1-year period, received unemployment compensation
under an unemployment compensation law of a State or of the United
States, or was qualified under the terms of paragraph (a)(3)(v) of this
section for such compensation under the State's unemployment
compensation law.
(iv) A ``quarter of work'' with respect to any individual means a
period (of 3 consecutive calendar months ending on March 31, June 30,
September 30, or December 31):
(A) In which an individual received earned income of not less than
$50 (or which is a ``quarter of coverage'' as defined in section
213(a)(2) of the Social Security Act) or participated in a program under
part 250 of this chapter; or
(B) At State option (as specified in the plan), in one or more
subdivisions of the State, in which he or she attended, full-time, an
elementary school, a secondary school, or a vocational or technical
training course that is designed to prepare the individual for gainful
employment, or in which the individual participated in an educational or
training program established under the Job Training Partnership Act,
provided that an individual may qualify for no more than four quarters
of work under this paragraph for purposes of the requirement set forth
in paragraph (a)(3)(iii)(A) of this section; and
(C) A calendar quarter ending before October 1990 in which an
individual participated in CWEP under section 409 of the Social Security
Act or the WIN program established under title IV-C of the Social
Security Act (as in effect for a State immediately before the effective
date of that State's JOBS program).
(v) An individual shall be deemed ``qualified'' for unemployment
compensation under the State's unemployment compensation law if he or
she would have been eligible to receive such benefits upon filing an
application, or he performed work not covered by such law, which, if it
had been covered, would (together with any covered work he performed)
have made him eligible to receive such benefits upon filing an
application.
(vi)(A) The ``parent who is the principal earner'' means, in the
case of any child, whichever parent, in a home in which both parents of
such child are living, earned the greater amount of income in the 24-
month period the last month of which immediately precedes the month in
which an application is filed for aid under this part on the basis of
the unemployment of a parent. If the State cannot secure primary
evidence of earnings for this period, the State shall designate the
principal earner, using the best evidence available. The earnings of
each parent are considered in determining the principal earner
regardless of when their relationship began. The principal earner so
defined remains the principal earner for each consecutive month for
which the family receives such aid on the basis of such application.
This requirement applies to both new applicants and current AFDC
unemployed parent families who were eligible and receiving aid prior to
October 1, 1981.
(B) If both parents earned an identical amount of income (or earned
no
[[Page 98]]
income) in such 24-month period, the State shall designate which parent
shall be the principal earner.
(4) Provide for entering into cooperative arrangements with the
State agency responsible for administering or supervising the
administration of vocational education to assure maximum utilization of
available public vocational education services and facilities in the
State to encourage the retraining of individuals capable of being
retrained.
(5) Provide that the needs of the child's parent(s) shall not be
taken into account in determining the needs and amount of assistance of
the child's family:
(i) If and for so long as such child's parent(s), unless exempt
under Sec. 250.30(b) of this chapter, is not currently participating
(or available for participation) in a program under part 250 of this
chapter or, if they are exempt under Sec. 250.30(b)(5) of this chapter
(or because a JOBS program has not been established in the subdivision
where they reside or they reside in a JOBS subdivision but there is no
appropriate JOBS activity in which they can participate), are not
registered with a public employment office in the State, and
(ii) With respect to any week for which such child's parent
qualifies for unemployment compensation under an unemployment
compensation law of the State or of the United States but refuses to
apply for or accept such unemployment compensation.
(6) Provide that medical assistance will be furnished under the
State's approved plan under title XIX during any month in which an
otherwise eligible individual is denied assistance solely by reason of
the time limitation provided under paragraph (b)(3) of this section.
(b) State Plan Options. A State plan under title IV-A may:
(1) Require the principal earner or both parents to participate in
an activity in the JOBS program under part 250 of this chapter, subject
to the limitations and conditions of part 250 of this chapter, provided
that the participation of each parent in all required activities under
the JOBS program does not exceed 40 hours per week, per parent.
(2) Provide cash assistance after the performance of assigned
program activities by parents required to participate in an activity in
the JOBS program under part 250 of this chapter (as provided in
paragraph (b)(1) of this section) so long as the State:
(i) Makes assistance payments at regular intervals at least monthly,
(ii) Prescribes a set of criteria which defines goals or standards
for each assigned activity in the JOBS program which must be completed
by the participant prior to payment, and
(iii) Prior to, or concurrent with, assignment to an activity,
notifies the participant of the prescribed goals or standards and that
payment for a period will be withheld unless performance of each
assigned activity for that period is completed.
(3) Provide for a State to operate a payment after performance
system under which a family is issued an assistance payment after the
applicable family member has successfully completed her obligation to
participate in JOBS for a specific period. If the applicable family
member fails without good cause to satisfy the obligation, the State
may:
(i) Impose a sanction in accordance with the JOBS program rules at
Sec. Sec. 250.34, 250.35 and 250.36 of this chapter;
(ii) Reduce the family's assistance payment to which the specific
period applies by the amount of the payment attributable to the family
member for that period or do not make the payment to the family; or
(iii) Reduce the family's assistance payment to which the specific
period applies (or the amount of the payment attributable to the family
member for that period) in proportion to the number of required hours
that were not completed.
For States that elect to implement paragraphs (b)(3) (ii) or (iii) of
this section, the fair hearing requirements set forth at Sec.
205.10(a)(4)(ii)(K) of this chapter apply.
(4) Limit the number of months that a family may receive AFDC-UP
under this section when the following conditions are met:
[[Page 99]]
(i) The State did not have on September 26, 1988, an approved AFDC-
UP program under section 407 of the Social Security Act.
(ii) The family received such aid (on the basis of the unemployment
of the parent who is the principal earner) in at least 6 of the
preceding 12 months.
(iii) The State has in effect a program (described in the plan) for
providing education, training, and employment services to assist parents
in preparing for and obtaining employment throughout the year. Such a
program may include education, training and employment activities under
the JOBS program which are provided in part 250 of this chapter or under
a State-designed program which provides:
(A) Education and instruction for individuals who have not graduated
from a secondary school or obtained an equivalent degree,
(B) Training whereby an individual acquires market-oriented skills
necessary for self-support, and
(C) Employment services which seek to place individuals in jobs.
(iv) The State must guarantee child care necessary for an individual
to participate in an approved, State-designed, non-JOBS program. The
regulations at part 255 of this chapter apply to such care.
(v) The State has the option of providing necessary supportive
services associated with an individual's participation in a State-
designed, non-JOBS program. Federal financial participation is available
under sections 403 (k) and (l) of the Social Security Act. The
regulations at part 255 of this chapter apply to such supportive
services.
(vi) The State must inform an AFDC-UP family at the time of
application that AFDC-UP cash assistance will terminate due to a time
limitation, that any family with a child who is (or becomes) deprived
due to the death, continued absence, or incapacity of a parent may
receive cash assistance under the AFDC program during the time
limitation for AFDC-UP, and that a program of training, education, and
employment services is available to prepare the family to become self-
supporting.
(vii) Prior to termination due to a time limitation, the State must
notify an AFDC-UP recipient family of the earliest month that it may
receive AFDC-UP cash assistance again. This notification may be included
in the notice of proposed action which is required pursuant to Sec.
205.10(a)(4) of this chapter. To receive assistance again, the family
must make a new application.
(viii) In establishing eligibility upon re-application following
months of nonpayment due to the time limitation, an otherwise eligible
family that does not receive aid in a month solely by reason of the
option to limit assistance under this paragraph shall be deemed, for
purposes of determining the period under paragraph (a)(3)(iii)(A) of
this section, to be receiving AFDC-UP cash assistance in that month.
This provision also applies if, at the time of the family's original
application for assistance, eligibility was established based on the
provisions of paragraph (a)(3)(iii)(B) of this section, but eligibility
could have been established based on the provisions of paragraph
(a)(3)(iii)(A) of this section.
(c) Federal Financial Participation. (1) Federal financial
participation is available for payments authorized in accordance with
the State plan approved under section 402 of the Act as aid to families
with dependent children with respect to a child:
(i) Who meets the requirements of section 406(a)(2) of the Act;
(ii) Who is living with any of the relatives specified in section
406(a)(1) of the Act in a place of residence maintained by one or more
of such relatives as his (or their) own home;
(iii) Who has been deprived of parental support or care by reason of
the fact that his or her parent who is the principal earner is employed
less than 100 hours a month; or exceeds that standard for a particular
month if his or her work is intermittent and the excess is of a
temporary nature as evidenced by the fact that he or she was under the
100-hour standard for 2 prior months and is expected to be under the
standard during the next month;
(iv) Whose parent who is the principal earner:
(A) Has six or more quarters of work (as defined in paragraph
(a)(3)(iv) of this section) within any 13-calendar-
[[Page 100]]
quarter period ending within 1 year prior to the application for such
aid,
(B) Within such 1-year period, received unemployment compensation
under an unemployment compensation law of a State or of the United
States, or was qualified (under the terms of paragraph (a)(3)(v) of this
section) for such compensation under the State's unemployment
compensation law; and
(v) Whose parent who is the principal earner:
(A) Is currently participating in or available to participate in an
activity in the JOBS program under part 250 of this chapter, unless
exempt, or is registered with the public employment office in the State
if exempt from the JOBS program under Sec. 250.30(b)(5) of this
chapter; and
(B) Has not refused to apply for or accept unemployment compensation
with respect to any week for which such child's parent qualifies for
unemployment compensation under an unemployment compensation law of the
State or of the United States.
(2) The State may not include in its claim for Federal financial
participation payments made as aid under the plan with respect to a
child who meets the conditions set forth in paragraph (c)(1) of this
section, where such payments were made:
(i) For any part of the 30-day period specified in paragraph
(a)(3)(i) of this section;
(ii) For such 30-day period if during that period the parent refused
without good cause a bona fide offer of employment or training for
employment;
(iii) For any period beginning with the 31st day after the receipt
of aid, if and for as long as no action is taken during the period to
undertake appropriate steps directed toward the participation of the
parent who is the principal earner in a program under part 250 of this
chapter;
(iv) To the extent that such payments are made to meet the need of
an individual who is subject to a sanction imposed, under part 250 of
this chapter (for failure to meet the requirements for participation in
the JOBS program).
(3) Federal financial participation is available for child care and
supportive services expenditures associated with participation in an
approved State-designed program (as provided in paragraph (b)(3)(iii) of
this section) under titles IV-A and IV-F of the Act respectively.
However, Federal financial participation is not available for any other
costs, program or administrative, associated with State-designed
programs.
(d) For all States (other than Puerto Rico, American Samoa, Guam,
and the Virgin Islands) the provisions of this section are in effect
through September 30, 1998. For Puerto Rico, American Samoa, Guam, and
the Virgin Islands, the provisions of this section are in effect from
October 1, 1992, through September 30, 1998.
[57 FR 30426, July 9, 1992, as amended at 63 FR 42274, Aug. 7, 1998]
Sec. 233.106 Denial of AFDC benefits to strikers.
(a) Condition for plan approval. A State plan under title IV-A of
the Social Security Act must:
(1) Provide that participation in a strike shall not constitute good
cause to leave, or to refuse to seek or accept, employment.
(2)(i) Provide for the denial of AFDC benefits to any family for any
month in which any caretaker relative with whom the child is living is,
on the last day of such month, participating in a strike; and
(ii) Provide that no individual's needs shall be included in
determining the amount of aid payable for any month to a family under
the plan if, on the last day of such month, such individual is
participating in a strike.
(b) Definitions. (1) The State must define ``strike'' by using the
National Labor Relations Board definition (29 U.S.C. 142(2)) or another
definition of the term that is currently in State law.
(2) The State must define the term ``participating in a strike.''
(3) For purposes of paragraph (a)(2)(i) of this section, ``caretaker
relative'' means any natural or adoptive parent.
[47 FR 5682, Feb. 5, 1982]
Sec. 233.107 Restriction in payment to households headed by a minor parent.
(a) State plan requirements. A State in its title IV-A State plan
may provide
[[Page 101]]
that a minor parent and the dependent child in his or her care must
reside in the household of a parent, legal guardian, or other adult
relative, or in an adult-supervised supportive living arrangement in
order to receive, AFDC unless:
(1) The minor parent has no living parent or legal guardian whose
whereabouts is known;
(2) No living parent or legal guardian of the minor parent allows
the minor parent to live in his or her home;
(3) The minor parent lived apart from his or her own parent or legal
guardian for a period of at least one year before either the birth of
the dependent child or the parent's having made application for AFDC;
(4) The physical or emotional health or safety of the minor parent
or dependent child would be jeopardized if they resided in the same
residence with the minor parent's parent or legal guardian;
(5) There is otherwise good cause for the minor parent and dependent
child to receive assistance while living apart from the minor parent's
parent, legal guardian, or other adult relative, or an adult-supervised
supportive living arrangement.
(b) Allegations. If a minor parent makes allegations supporting the
conclusion that paragraph (a)(4) of this section applies, the State
agency shall determine whether it is justified.
(c) Good Cause. The circumstances justifying a determination of good
cause must be set forth in the State plan.
(d) Protective Payments. When a minor parent and his or her
dependent child are required to live with the minor parent's parent,
legal guardian, or other adult relative, or in an adult-supervised
supportive living arrangement, then AFDC is paid (where possible) in the
form of a protective payment.
(e) Definitions: For purposes of this section:
(1) A minor parent is an individual who (i) is under the age of 18,
(ii) has never been married, and (iii) is either the natural parent of a
dependent child living in the same household or eligible for assistance
paid under the State plan to a pregnant woman as provided in Sec.
233.90(c)(2)(iv) of this part.
(2) A household of a parent, legal guardian, or other adult
relatives means the place of residence of (i) a natural or adoptive
parent or a stepparent, or (ii) a legal guardian as defined by the
State, or (iii) another individual who is age 18 or over and related to
the minor parent as specified in Sec. 233.90(c)(1)(v) of this part
provided that the residence is maintained as a home for the minor parent
and child as provided in Sec. 233.90(c)(1)(v)(B) of this part.
(3) An adult-supervised supportive living arrangement means a
private family setting or other living arrangement (not including a
public institution), which, as determined by the State, is maintained as
a family setting, as evidenced by the assumption of responsibility for
the care and control of the minor parent and dependent child or the
provision of supportive services, such as counseling, guidance, or
supervision. For example, foster homes and maternity homes are ``adult-
supervised supportive living arrangements.''
(f) Notice Requirements. Minor applicants shall be informed about
the eligibility requirements and their rights and obligations consistent
with the provisions at Sec. 206.10(a)(2)(i). For example, a State may
wish to: (1) Advise the minor of the possible exemptions and
specifically ask whether one or more of these exemptions is applicable;
and (2) assist the minor in attaining the necessary verifications if one
or more of these exemptions is alleged.
[57 FR 30428, July 9, 1992]
Sec. 233.110 Foster care maintenance and adoption assistance.
(a) State plan requirements. A State plan under title IV-A of the
Social Security Act must provide that the State has in effect a plan
approved under part E, title IV of the Social Security Act, and operates
a foster care maintenance and adoption assistance program in conformity
with such a plan.
(b) [Reserved]
[51 FR 9206, Mar. 18, 1986]
Sec. 233.145 Expiration of medical assistance programs under titles I, IV-A, X, XIV and XVI of the Social Security Act.
(a) Under the provisions of section 121(b) of Pub. L. 89-97, enacted
July 30,
[[Page 102]]
1965, no payment may be made to any State under title I, IV-A, X, XIV or
XVI of the Social Security Act for aid or assistance in the form of
medical or any other type of remedial care for any period after December
31, 1969. However, these provisions do not affect the availability of
Federal financial participation in the cost of medical or remedial care
furnished under title IV-A of the Act (pursuant to sections 403(a)(5)
and 406(e) ) of the Act, as emergency assistance to needy families with
children (see Sec. 233.120 of this part), subject to the provisions of
paragraph (c) \1\ of this section. Federal financial participation in
vendor payments for medical care and services is not otherwise available
except under title XIX of the Act.
---------------------------------------------------------------------------
\1\ See notice published Aug. 29, 1973 (38 FR 23337).
---------------------------------------------------------------------------
(b) Under the provisions of section 4(c) of Pub. L. 92-223, enacted
December 28, 1971, and the provisions of section 292 of Pub. L. 92-603,
enacted October 30, 1972:
(1) In the case of any State which on January 1, 1972, had in effect
a State plan approved under title XIX of the Social Security Act,
section 1121 of the Act authorizing payments under title I, X, XIV, or
XVI of the Act for assistance in the form of institutional services in
intermediate care facilities is rescinded; and
(2) In the case of any State which on January 1, 1972, did not have
in effect a State plan approved under title XIX of the Act, Federal
financial participation is available in assistance in the form of
institutional services in intermediate care facilities pursuant to
section 1121 of the Act and under the provisions of Sec. 234.130 of
this chapter until the first day of the first month after January 1,
1972, that the State has in effect a State plan approved under title
XIX.
(c)(1) Under the provisions of section 249D of Pub. L. 92-603,
enacted October 30, 1972, Federal matching is not available for any
portion of any payment by any State under titles I, IV-A, X, XIV, or XVI
of the Social Security Act for or on account of any medical or any other
type of remedial care provided by an institution to any individual as an
inpatient thereof, in the case of any State which has a plan approved
under title XIX of such Act, if such care is (or could be provided,
under a State plan approved under title XIX of such Act, by an
institution certified under such title XIX. The effective date of this
proposed provision will be the date of publication of the final
regulation in the Federal Register.
(2) For purposes of this paragraph,
(i) An institution (see Sec. 233.60(b)(1) of this chapter) is
considered to provide medical or remedial care if it provides any care
or service beyond room and board because of the physical or mental
condition (or both) of its inpatients;
(ii) An inpatient is an individual who is living in an institution
which provides medical or remedial care and who is receiving care or
service beyond room and board because of his physical or mental
condition (or both).
(iii) Federal financial participation is not available for any
portion of the payment for care of an inpatient. It is immaterial
whether such payment is made as a vendor payment or as a money payment
or other cash assistance payment. It is also immaterial whether the
payment is divided into components, such as separate amounts or payments
for room and board, and for care or services beyond room and board, or
whether the payment is considered to meet ``basic'' needs or ``special''
needs. If, however, a money payment (or protective payment) is made to
an individual who is living in an institution, and such payment does not
exceed a reasonable rate for room, board and laundry for individuals not
living in their own homes, and no additional payment is made for such
individual's care in the institution, Federal financial participation is
available in the money payment (or protective payment) since the
individual may spend the funds at his discretion and obtain room and
board at the place of his choice.
(iv) Federal financial participation is available in cash assistance
payments to meet the needs of an inpatient for specific medical
services, such as dental care or prescription drugs, which generally are
not delivered in an institutional setting and in fact are not
[[Page 103]]
provided by the institution to the inpatient, provided that such
services are not available to the individual under the State's approved
title XIX plan.
[38 FR 26379, Sept. 20, 1973, as amended at 38 FR 32912, Nov. 29, 1973]
PART 234_FINANCIAL ASSISTANCE TO INDIVIDUALS--Table of Contents
Sec.
234.11 Assistance in the form of money payments.
234.60 Protective, vendor, and two-party payments for dependent
children.
234.70 Protective payments for the aged, blind, or disabled.
234.75 Rent payments to public housing agencies.
234.120 Federal financial participation.
234.130 Assistance in the form of institutional services in intermediate
care facilities.
Authority: 42 U.S.C. 602, 603, 606, and 1302.
Sec. 234.11 Assistance in the form of money payments.
(a) Federal financial participation is available in money payments
made under a State plan under title I, IV-A, X, XIV, or XVI of the
Social Security Act to eligible families and individuals. Money payments
are payments in cash, checks, or warrants immediately redeemable at par,
made to the grantee or his legal representative with no restrictions
imposed by the agency on the use of funds by the individual.
(b) [Reserved]
[36 FR 22238, Nov. 23, 1971, as amended at 51 FR 9206, Mar. 18, 1986]
Sec. 234.60 Protective, vendor and two-party payments for dependent children.
(a) State plan requirements. (1) If a State plan for AFDC under
title IV-A of the Social Security Act provides for protective, vendor
and two-party payments for cases other than failure to participate in
the Job Opportunities and Basic Skills Training (JOBS) Program under
Sec. 250.34(d), or failure by the caretaker relative to meet the
eligibility requirements of Sec. 232.11, 232.12, or 232.13 of this
chapter. It must meet the requirements in paragraphs (a) (2) through
(11) of this section. In addition, the plan may provide for protective,
vendor, and two-party payments at the request of recipients as provided
in paragraph (a)(14) of this section.
(2)(i) Methods will be in effect to identify children whose
relatives have demonstrated such an inability to manage funds that
payments to the relative have not been or are not currently used in the
best interest of the child. This means that the relative has misused
funds to such an extent that allowing him or her to manage the AFDC
grant is a threat to the health or safety of the child.
(ii) States will establish criteria to determine if mismanagement
exists. Under this provision, States may elect to use as one criterion a
presumption of mismanagement based on a recipient's nonpayment of rent.
(iii) Under State agency procedures, the recipient shall be notified
whenever a creditor requests a protective, vendor, or two-party payment
for mismangement on the basis of non-payment of bills.
(iv) The recipient shall be notified by the agency of a decision not
to use a protective, vendor, or two-party payment if such payment has
been requested by a creditor.
(v) A statement of the specific reasons that demonstrate the need
for making protective, vendor, and two-party payments must be placed in
the file of the child involved.
(3) Criteria will be established to identify the circumstances under
which protective, vendor, or two-party payments will be made in whole or
in part to:
(i) Another individual who is interested in or concerned with the
welfare of the child or relative; or
(ii) A person or persons furnishing food, living accommodations or
other goods, services, or items to or for the child, relative, or
essential person.
(4) Procedures will be established for making protective, vendor, or
two-party payments. Under this provision, part of the payment may be
made to the family and part may be made to a protective payee or to a
vendor, or part may be made in the form of two-party payments, i.e.,
checks which are drawn jointly to the order of the recipient and the
person furnishing goods, services,
[[Page 104]]
or items and negotiable only upon endorsement by both the recipient and
the other person.
(5)-(6) [Reserved]
(7) Standards will be established for selection:
(i) Of protective payees, who are interested in or concerned with
the recepient's welfare, to act for the recipient in receiving and
managing assistance, with the selection of a protective payee being made
by the recipient, or with his participation and consent, to the extent
possible. If it is in the best interest of the recipient for a staff
member of a private agency, of the public welfare department, or of any
other appropriate organization to serve as a protective payee, such
selection will be made preferably from the staff of an agency or that
part of the agency providing protective services for families; and the
public welfare department will employ such additional staff as may be
necessary to provide protective payees. The selection will not include:
The executive head of the agency administering public assistance; the
person determining financial eligibility for the family; special
investigative or resource staff; or staff handling fiscal processes
related to the recipient; or landlords, grocers, or other vendors of
goods, services, or items dealing directly with the recipient.
(ii) Of such persons providing goods, services, or items with the
selection of such persons being made by the recipient, or with his
participation and consent, to the extent possible.
(8) The agency will undertake and continue special efforts to
develop greater ability on the part of the relative to manage funds in
such manner as to protect the welfare of the family.
(9) Review will be made as frequently as indicated by the
individual's circumstances, and at least once every 12 months, of:
(i) The need for protective, vendor, and two-party payments; and
(ii) The way in which a protective payee's responsibilities are
carried out.
(10) Provision will be made for termination of protective payments,
or payments to a person furnishing goods or services, as follows:
(i) When relatives are considered able to manage funds in the best
interest of the child, there will be a return to money payment status.
(ii) When it appears that need for protective, vendor, or two-party
payments will continue or is likely to continue beyond 2 years because
all efforts have not resulted in sufficiently improved use of assistance
in behalf of the child, judicial appointment of a guardian or other
legal representative will be sought and such payments will terminate
when the appointment has been made.
(11)(i) Opportunity for a fair hearing pursuant to Sec. 205.10 will
be given to any individual claiming assistance in relation to the
determination:
(A) That a protective, vendor, and two-party payment should be made
or continued.
(B) As to the payee selected.
(ii) In cases where the agency has elected the option to presume
mismanagement based on a recipient's nonpayment of rent pursuant to
paragraph (a)(2)(ii), the agency may also elect the option to provide
the opportunity for a fair hearing pursuant to Sec. 205.10 either
before or after the manner or form of payment has been changed for these
cases.
(12) In cases where an individual is sanctioned for failure to
participate in WIN, employment search, CWEP, or JOBS, the State plan
must provide that when protective or vendor payments are made pursuant
to Sec. 224.52(a)(1), Sec. 238.22, Sec. 240.22(a)(1), Sec.
240.22(b)(1) and Sec. 250.34(d) of this chapter, only paragraphs
(a)(7), (a)(9)(ii), and (a)(11)(i) and (ii) of this section will be
applicable. Under these circumstances, when protective payments are
made, the entire payment will be made to the protective payee; and when
vendor payments are made, at least the greater part of the payment will
be through this method. However, if after making all reasonable efforts,
the State agency is unable to locate an appropriate individual to whom
protective payments can be made, the State may continue to make payments
on behalf of the remaining members of the assistance unit to the
sanctioned caretaker relative. Provision will be made for termination of
protective payments, or payments to a person furnishing goods or
services, with return
[[Page 105]]
to money payment status when adults who refused training, employment, or
participation in employment search without good cause either accept
training, employment, or employment search or agree to do so. In the
case of continuing refusal of the relative to participate, payments will
be continued for the children in the home in accordance with this
paragraph.
(13) For cases in which a caretaker relative fails to meet the
eligibility requirements of Sec. Sec. 232.11, 232.12, or 232.13 of this
chapter by failing to assign rights to support or cooperate in
determining paternity, securing support, or identifying and providing
information to assist the State in pursuing third party liability for
medical services, the State plan must provide that only the requirements
of paragraphs (a)(7) and (9)(ii) of this section will be applicable. For
such cases, the entire amount of the assistance payment will be in the
form of protective or vendor payments. These protective or vendor
payments will be terminated, with return to money payment status, only
upon compliance by the caretaker relative with the eligibility
requirements of Sec. Sec. 232.11, 232.12, and 232.13 of this chapter.
However, if after making reasonable efforts, the State agency is unable
to locate an appropriate individual to whom protective payments can be
made, the State may continue to make payments to the sanctioned
caretaker relative on behalf of the remaining members of the assistance
unit.
(14) If the plan provides for protective, vendor, or two-party
payments:
(i) The State may use any combination of protective, vendor, or two-
party payments (at the request of the recipient),
(ii) The request must be in writing from the recipient to whom
payment would otherwise be made in an unrestricted manner and must be
recorded or retained in the case file, and
(iii) The restriction will be discontinued promptly upon the written
request of the recipient who initiated it.
(b) Federal financial participation. Federal financial participation
is available in payments which otherwise qualify as money payments with
respect to an eligible dependent child, but which are made as
protective, vendor or two-party payments under this section. Payrolls
must identify protective, vendor, or two-party payments either by use of
a separate payroll for these cases or by using a special identifying
code or symbol on the regular payroll. The payment must be supported by
an authorization of award through amendment of an existing authorization
document for each case or by preparation of a separate authorization
document. In either instance, the authorization document must be a
formal agency record signed by a responsible agency official, showing
the name of each eligible child and relative, the amount of payment
authorized and the name of the protective, vendor or two-party payee.
[37 FR 9025, May 4, 1972, as amended at 37 FR 12202, June 20, 1972; 45
FR 20480, Mar. 28, 1980; 47 FR 5682, Feb. 5, 1982; 49 FR 35603, Sept.
10, 1984; 51 FR 9206, Mar. 18, 1986; 54 FR 42244, Oct. 13, 1989; 56 FR
8932, Mar. 4, 1991; 57 FR 30160, July 8, 1992]
Sec. 234.70 Protective payments for the aged, blind, or disabled.
(a) State plan requirements. If a State plan for OAA, AB, APTD, or
AABD under the Social Security Act includes provisions for protective
payments, the State plan must provide that:
(1) Methods will be in effect to determine that needy individuals
have, by reason of physical or mental condition, such inability to
manage funds that making payment to them would be contrary to their
welfare; such methods to include medical or psychological evaluations,
or other reports of physical or mental conditions including observation
of gross conditions such as extensive paralysis, serious mental
retardation, continued disorientation, or severe memory loss.
(2) There will be responsibility to assure referral to social
services for appropriate action to protect recipients where problems and
needs for services and care of the recipients are manifestly beyond the
ability of the protective payee to handle. (See paragraph (a)(5) of this
section.)
(3) Standards will be established for selection of protective payees
who are
[[Page 106]]
interested in or concerned with the individual's welfare, to act for the
individual in receiving and managing assistance, with the selection of a
protective payee being made by the individual, or with his participation
and consent, to the extent possible. If it is in the best interest of
the individual for a staff member of a private agency, of the public
welfare department, or of any other appropriate organization to serve as
a protective payee, such selection will be made preferably from the
staff of an agency or that part of the agency providing protective
services for families or for the disabled or aged group of which the
recipient is a member; and such staff of the public welfare department
will be utilized only to the extent that the department has adequate
staff for this purpose. The selection will not include: The executive
head of the agency administering public assistance; the person
determining financial eligibility for the individual; special
investigative or resource staff, or staff handling fiscal processes
related to the recipient; or landlords, grocers, or other vendors of
goods or services dealing directly with the recipient--such as the
proprietor, administrator or fiscal agent of a nursing home, or social
care, medical or nonmedical institution, except for the superintendent
of a public institution for mental diseases or a public institution for
the mentally retarded, or the designee of such superintendent, when no
other suitable protective payee can be found and there are appropriate
staff available to assist the superintendent in carrying out the
protective payment function.
(4) Protective payments will be made only in cases in which the
assistance payment, with other available income, meets all the needs of
the individual, using the State's standards for assistance for the
pertinent program, not standards for protective payment cases only.
(5) The agency will undertake and continue special efforts to
protect the welfare of such individuals and to improve, to the extent
possible, their capacity for self-care and to manage funds.
(6) Reconsideration of the need for protective payments and the way
in which a protective payee's responsibilities are carried out will be
as frequent as indicated by the individual's circumstances and at least
every 6 months.
(7) Provision will be made for appropriate termination of protective
payments as follows:
(i) When individuals are considered able to manage funds in their
best interest, there will be a return to money payment status.
(ii) When a judicial appointment of a guardian or other legal
representative appears to serve the best interest of the individual,
such appointment will be sought and the protective payment will
terminate when the appointment has been made.
(8) Opportunity for a fair hearing will be given to any individual
claiming assistance in relation to the determination that a protective
payment should be made or continued, and in relation to the payee
selected.
(b) Federal financial participation. Federal financial participation
is available for payments, which otherwise qualify as money payments
with respect to a needy individual, but which are made to a protective
payee under paragraph (a)(3) of this section. The payment must be
supported by an authorization of award through amendment of an existing
authorization document for such case or by preparation of a separate
authorization document. In either instance, the authorization document
must be a formal agency record signed by a responsible agency official
showing the name of each eligible individual, the amount of payment
authorized and the name of the protective payee. Payrolls must identify
protective payment cases either by use of a separate payroll for these
cases or by using a special identifying code or symbol on the regular
payroll.
[34 FR 1323, Jan. 28, 1969]
Sec. 234.75 Rent payments to public housing agencies.
At the option of a State, if its plan approved under title I, X,
XIV, or XVI of the Social Security Act so provides, Federal financial
participation under such title is available in rent payments made
directly to a public housing agency on behalf of a recipient or a group
or
[[Page 107]]
groups of recipients of OAA, AB, APTD, or AABD. Such Federal financial
participation is available in rent payments only to the extent that they
do not exceed the amount included for rent under the State's standard of
assistance or the amount of rent due under applicable law, whichever is
less.
[38 FR 26380, Sept. 20, 1973]
Sec. 234.120 Federal financial participation.
Federal financial participation is available in assistance payments
made under a State plan under title I, IV-A, X, XIV, or XVI of the
Social Security Act to any family or individual for periods beginning
with the month in which they meet all eligibility conditions under the
plan and in which an application has been received by the agency. Such
assistance payments include:
(a) Money payments (titles I, IV-A, X, XIV, and XVI, see Sec.
234.11 of this chapter);
(b) Protective and vendor payments for dependent children (title IV-
A, see Sec. 234.60 of this chapter);
(c) Protective payments for the aged, blind, or disabled (titles I,
X, XIV, and XVI, see Sec. 234.70 of this chapter);
(d) AFDC foster care payments (title IV-A, see Sec. 233.110 of this
chapter);
(e) Vendor payments for institutional services in intermediate care
facilities (titles I, X, XIV, and XVI), but only in a State that did
not, as of January 1, 1972, have an approved plan under title XIX of the
act, and only until such State has such a plan in effect (see Sec.
234.130 of this chapter);
(f) Emergency assistance to needy families with children (title IV-
A, see Sec. 233.120 of this chapter);
(g) Vendor payments for home repairs (titles I, IV-A, X, XIV, and
XVI, see Sec. 233.20(c) of this chapter); and
(h) Rent payments to public housing agencies (titles I, X, XIV, and
XVI, see Sec. 234.75 of this chapter).
[38 FR 26380, Sept. 20, 1973]
Sec. 234.130 Assistance in the form of institutional services in intermediate care facilities.
(a) Applicability and State plan requirements. A State which, on
January 1, 1972, did not have in effect a State plan approved under
title XIX of the Social Security Act may provide assistance under title
I, X, XIV, or XVI of the Act in the form of institutional services in
intermediate care facilities as authorized under title XI of the Act,
until the first day of the first month (occurring after January 1, 1972)
that such State does have in effect a State plan approved under title
XIX of the Act. In any State which may provide such assistance as
authorized under title XI of the Act, a State plan under title I, X,
XIV, or XVI of the Act which includes such assistance must:
(1) Provide that such benefits will be provided only to individuals
who:
(i) Are entitled (or would, if not receiving institutional services
in intermediate care facilities, be entitled) to receive assistance,
under the State plan, in the form of money payments; and
(ii) Because of their physical or mental condition (or both) require
living accommodations and care which, as a practical matter, can be made
available to them only through institutional facilities; and
(iii) Do not have such an illness, disease, injury, or other
condition as to require the degree of care and treatment which a
hospital or skilled nursing home (as that term is employed in title XIX)
is designed to provide.
(2) Provide that, in determining financial eligibility for benefits
in the form of institutional services in intermediate care facilities,
available income will be applied, first for personal and incidental
needs including clothing, and that any remaining income will be applied
to the costs of care in the intermediate care facility.
(3) Provide methods of administration that include:
(i) Placing of responsibility, within the State agency, with one or
more staff members with sufficient staff time exclusive of other duties
to direct and guide the agency's activities with respect to services in
intermediate care facilities, including arrangements for consultation
and working relationships with the State standard-setting authority and
State agencies responsible for mental health and for mental retardation;
[[Page 108]]
(ii) In relation to authorization of benefits, provisions for
evaluation by a physician of the individual's physical and mental
condition and the kinds and amounts of care he requires; evaluation by
the agency worker of the resources available in the home, family and
community; and participation by the recipient in determining where he is
to receive care, except that in the case of services being provided in a
Christian Science Sanatorium, certification by a qualified Christian
Science practitioner that the individual meets the requirements
specified in paragraphs (a)(1) (ii) and (iii) of this section may be
substituted for the evaluation by a physician;
(iii) Provisions for redetermination at least semiannually that the
individual is properly a recipient of intermediate care.
(4) Provide for regular, periodic review and reevaluation no less
often than annually (by or on behalf of the State agency administering
the plan and in addition to the activities described in paragraph (a)(3)
of this section) of recipients in intermediate care facilities to
determine whether their current physical and mental conditions are such
as to indicate continued placement in the intermediate care facility,
whether the services actually rendered are adequate and responsive to
the conditions and needs identified, and whether a change to other
living arrangements, or other institutional facilities (including
skilled nursing homes) is indicated. Such reviews must be followed by
appropriate action on the part of the State agency administering the
plan. They must be conducted by or under the supervision of a physician
with participation by a registered professional nurse and other
appropriate medical and social service personnel not employed by or
having a financial interest in the facility, except that, in the case of
recipients who have elected care in a Christian Science sanatorium,
review by a physician or other medical personnel is not required.
(5) Provide that all services with respect to social and related
problems which the agency makes available to applicants and recipients
of assistance under the plan will be equally available to all applicants
for and recipients of benefits in the form of institutional services in
intermediate care facilities.
(6) Specify the types of facilities, however described, that will
qualify under the State plan for participation as intermediate care
facilities, and provide for availability to the Department of Health and
Human Services, upon request of (i) copies of the State's requirements
for licensing of such facilities, (ii) any requirements imposed by the
State in addition to licensing and to definition of intermediate care
facilities, and (iii) a description of the manner in which such
requirements are applied and enforced including copies of agreements or
contracts, if any, with the licensing authority for this purpose.
(7) Provide for and describe methods of determining amounts of
vendor payments to intermediate care facilities which systematically
relate amounts of the payment to the kinds, levels, and quantities of
services provided to the recipients by the institutions and to the cost
of providing such services.
(b) Other requirements. Except when inconsistent with purposes of
section 1121 of the Act or contrary to any provision therein, any
modification, pursuant thereto, of an approved State plan shall be
subject to the same conditions, limitations, rights, and obligations as
obtained with respect to such approved State plan. Included specifically
among such conditions and limitations are the provisions of titles I, X,
XIV, and XVI relating to payments to or care in behalf of any individual
who is an inmate of a public institution (except as a patient in a
medical institution).
(c) Federal financial participation. (1) Federal financial
participation is available under section 1121 of the Act in vendor
payments for institutional services provided to individuals who are
eligible under the respective State plan and who are residents in
intermediate care facilities. The rate of participation is the same as
for money payments under the respective title or, if the State so
elects, at the rate of the Federal medical assistance percentage as
defined in section 1905(b) of the Act. Such Federal financial
participation ends on the date specified in paragraph
[[Page 109]]
(c)(2) of this section, or 12 months after the date when the State first
has in effect a State plan approved under title XIX of the Act,
whichever is later.
(2) For the period from January 1, 1972, to the date on which a
determination is made under the provisions of 42 CFR 449.33 as to a
facility's eligibility to receive payments for intermediate care
facility services under the medical assistance program, title XIX of the
Act, but not later than 12 months following the effective date of these
regulations, Federal financial participation in payments for such
services under title XIX is governed by the provisions of this section,
applied to State plans under title XIX.
(d) Definition of terms. For purposes of section 1121 of the Social
Security Act, the following definitions apply:
(1) Institutional services. The term, institutional services, means
those items and services provided by or under the auspices of the
institution which contribute to the health, comfort, and well-being of
the residents thereof; except that the term, institutional services,
does not include allowances for clothing and incidental expenses for
which money payments to recipients are made under the plan, nor does it
include medical care, in a form identifiable as such and separable from
the routine services of the facility, for which vendor payments may be
made under a State plan approved under title XIX.
(2) Distinct part of an institution. A distinct part of an
institution is defined as a part which meets the definition of an
intermediate care facility and the following conditions:
(i) Identifiable unit. The distinct part of the institution is an
entire unit such as an entire ward or contiguous wards, wing, floor, or
building. It consists of all beds and related facilities in the unit and
houses all residents, except as hereafter provided, for whom payment is
being made for intermediate care. It is clearly identified and is
approved, in writing, by the agency applying the definition of
intermediate care facility herein.
(ii) Staff. Appropriate personnel are assigned and work regularly in
the unit. Immediate supervision of staff is provided in the unit at all
time by qualified personnel.
(iii) Shared facilities and services. The distinct part may share
such central services and facilities as management services, building
maintenance and laundry, with other units.
(iv) Transfers between distinct parts. In a facility having distinct
parts devoted to skilled nursing home care and intermediate care, which
facility has been determined by the appropriate State agency to be
organized and staffed to provide services according to individual needs
throughout the institution, nothing herein shall be construed to require
transfer of an individual within the institution when in the opinion of
the individual's physician such transfer might be harmful to the
physical or mental health of the individual.
(3) Intermediate care facility. An intermediate care facility is an
institution or a distinct part thereof which:
(i) Is licensed, under State law to provide the residents thereof,
on a regular basis, the range or level of care and services as defined
in paragraph (d)(4) of this section, which is suitable to the needs of
individuals who:
(a) Because of their physical or mental limitations or both, require
living accommodations and care which, as a practical matter, can be made
available to them only through institutional facilities, and
(b) Do not have such an illness, disease, injury, or other condition
as to require the degree of care and treatment which a hospital or
skilled nursing home (as that term is employed in title XIX) is designed
to provide:
(ii) Does not provide the degree of care required to be provided by
a skilled nursing home furnishing services under a State plan approved
under title XIX:
(iii) Meets such standards of safety and sanitation as are
applicable to nursing homes under State law; and
(iv) Regularly provides a level of care and service beyond board and
room.
The term intermediate care facility also includes a Christian Science
sanatorium operated, or listed and certified, by the First Church of
Christ, Scientist, Boston, Mass.
[[Page 110]]
(4) Range or level of care and services. The range or level of care
and services suitable to the needs of individuals described in paragraph
(d)(3)(i) of this section is to be defined by the State agency. The
following items are recommended as a minimum.
(i) Admission, transfer, and discharge of residents. The admission,
transfer, and discharge of residents of the facility are conducted in
accordance with written policies of the institution that include at
least the following provisions.
(a) Only those persons are accepted into the facility whose needs
can be met within the accommodations and services the facility provides;
(b) As changes occur in their physical or mental condition,
necessitating service or care not regularly provided by the facility,
residents are transferred promptly to hospitals, skilled nursing homes,
or other appropriate facilities;
(c) The resident, his next of kin, and the responsible agency if
any, are consulted in advance of the discharge of any resident, and
casework services or other means are utilized to assure that adequate
arrangements exist for meeting his needs through other resources.
(ii) Personal care and protective services. The types and amounts of
protection and personal service needed by each resident of the facility
are a matter of record and are known to all staff members having
personal contact with the resident. At least the following services are
provided.
(a) There is, at all times, a responsible staff member actively on
duty in the facility, and immediately accessible to all residents, to
whom residents can report injuries, symptoms of illness, or emergencies,
and who is immediately responsible for assuring that appropriate action
is taken promptly.
(b) Assistance is provided, as needed by individual residents, with
routine activities of daily living including such services as help in
bathing, dressing, grooming, and management of personal affairs such as
shopping.
(c) Continuous supervision is provided for residents whose mental
condition is such that their personal safety requires such supervision.
(iii) Social services. Services to assist residents in dealing with
social and related problems are available to all residents through one
or more caseworkers on the staff of the facility; and/or, in the case of
recipients of assistance, through caseworkers on the staff of the
assistance agency; or through other arrangements.
(iv) Activities. Activities are regularly available for all
residents, including social and recreational activities involving active
participation by the residents, entertainment of appropriate frequency
and character, and opportunities for participation in community
activities as possible and appropriate.
(v) Food service. At least three meals a day, constituting a
nutritionally adequate diet, are served in one or more dining areas
separate from sleeping quarters, and tray service is provided for
residents temporarily unable to leave their rooms.
(vi) Special diets. If the facility accepts or retains individuals
in need of medically prescribed special diets, the menus for such diets
are planned by a professionally qualified dietitian, or are reviewed and
approved by the attending physician, and the facility provides
supervision of the preparation and serving of the meals and their
acceptance by the resident.
(vii) Health services. Whether provided by the facility or from
other sources, at least the following services are available to all
residents:
(a) Immediate supervision of the facility's health services by a
registered professional nurse or a licensed practical nurse employed
full-time in the facility and on duty during the day shift except that,
where the State recognizes and describes two or more distinct levels of
institutions as intermediate care facilities such personnel are not
required in any level that serves only individuals who have been
determined by their physicians not to be in need of such supervision and
whose need for such supervision is reviewed as indicated, and at least
quarterly;
(b) Continuing supervision by a physician who sees the resident as
needed and in no case, less often than quarterly;
[[Page 111]]
(c) Under direction by the resident's physician and (where
applicable in accordance with (d)(4)(vii)(a) of this section), general
supervision by the nurse in charge of the facility's health services,
guidance, and assistance for each resident in carrying out his personal
health program to assure that preventive measures, treatments, and
medications prescribed by the physician are properly carried out and
recorded;
(d) Arrangements for services of a physician in the event of an
emergency when the resident's own physician cannot be reached;
(e) In the presence of minor illness and for temporary periods,
bedside care under direction of the resident's physician including
nursing service provided by, or supervised by, a registered professional
nurse or a licensed practical nurse;
(f) An individual health record for each resident including;
(1) The name, address, and telephone number of his physician;
(2) A record of the physician's findings and recommendations in the
preadmission evaluation of the individual's condition and in subsequent
reevaluations and all orders and recommendations of the physician for
care of the resident;
(3) All symptoms and other indications of illness or injury brought
to the attention of the staff by the resident, or from other sources,
including the date, time, and action taken regarding each.
(viii) Living accommodations. Space and furnishings provide each
resident clean, comfortable, and reasonably private living
accommodations with no more than four residents occupying a room, with
individual storage facilities for clothing and personal articles, and
with lounge, recreation and dining areas provided apart from sleeping
quarters.
(ix) Administration and management. The direction and management of
the facility are such as to assure that the services required by the
residents are so organized and administered that they are, in fact,
available to the residents on a regular basis and that this is
accomplished efficiently and with consideration for the objective of
providing necessary care within a homelike atmosphere. Staff are
employed by the facility sufficient in number and competence, as
determined by the appropriate State agency, to meet the requirements of
the residents.
[35 FR 8990, June 10, 1970, as amended at 39 FR 2220, Jan. 17, 1974; 39
FR 8918, Mar. 7, 1974]
PART 235_ADMINISTRATION OF FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
Sec.
235.40 [Reserved]
235.50 State plan requirements for methods of personnel administration.
235.60 Federal financial participation (FFP) for State and local
training.
235.61 Definition of terms.
235.62 State plan requirements for training programs.
235.63 Conditions for FFP.
235.64 FFP rates, and activities and costs matchable as training
expenditures.
235.65 Activities and costs not matchable as training expenditures.
235.66 Sources of State funds.
235.70 Prompt notice to child support or Medicaid agency.
235.110 Fraud.
Authority: 42 U.S.C. 603, 616, and 1302.
Sec. 235.40 [Reserved]
Sec. 235.50 State plan requirements for methods of personnel administration.
(a) A State plan for financial assistance programs under title I,
IV-A, X, XIV, or XVI (AABD) of the Social Security Act must provide that
methods of personnel administration will be established and maintained
in public agencies administering or supervising the administration of
the program in conformity with the Standards for a Merit System of
Personnel Administration, 5 CFR part 900, subpart F, which incorporates
the Intergovernmental Personnel Act Merit Principles (Pub. L. 91-648,
section 2, 84 Stat. 1909), prescribed by the Office of Personnel
Management pursuant to section 208 of the Intergovernmental Personnel
Act of 1970 as amended.
[45 FR 25398, Apr. 15, 1980]
[[Page 112]]
Sec. 235.60 Federal financial participation (FFP) for State and local training.
Sections 235.61 through 235.66 contain (a) State plan requirements
for training programs and (b) conditions for Federal financial
participation (FFP) for training costs under the State plans. These
sections apply to the State plans for the financial assistance programs
in all jurisdictions under title I, IV-A, X, XIV, or XVI (AABD) of the
Social Security Act.
[45 FR 29833, May 6, 1980]
Sec. 235.61 Definition of terms.
For purposes of Sec. Sec. 235.60-235.66:
Act means the Social Security Act, as amended.
A grant to an educational institution means payments to an
educational institution for services rendered under a time limited
agreement between the State agency and the eligible educational
institution which provides for the training of State or local agency
employees or persons preparing for employment with the State or local
agency.
A training program is the method through which the State agency
carries out a plan of educational and training activities to improve the
operation of its programs.
(a) Initial in-service training means a period of intensive, task-
oriented training to prepare new employees to assume job
responsibilities.
(b) Continuing training means an on-going program of training
planned to enable employees to: (1) Reinforce their basic knowledge and
develop the required skills for the performance of specific functions,
and (2) acquire additional knowledge and skill to meet changes such as
enactment of new legislation, development of new policies, or shifts in
program emphasis.
(c) Full-time training means training that requires employees to be
relieved of all responsibility for performance of current work to
participate in a training program.
(d) Part-time training means training that allows employees to
continue full time in their jobs or requires only partial reduction of
work activities to participate in a training program outside of the
State or local agency.
(e) Long-term training means training for eight consecutive work
weeks or longer.
(f) Short-term training means training for less than eight
consecutive work weeks.
FFP or Federal financial participation means the Federal
government's share of expenditures made by a State or local agency under
a training program.
Fringe benefits means the employer's share of premiums for
industrial compensation, employee's retirement, unemployment
compensation, health insurance, and similar expenses.
Persons preparing for employment means individuals who are not yet
employed by the State or local agency, but who have received financial
assistance from the State agency for training, and have made a legally
binding commitment with the State or local agency for future employment
under the conditions of these regulations.
Stipend means the basic living allowance paid to a student.
[45 FR 29833, May 6, 1980]
Sec. 235.62 State plan requirements for training programs.
A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the Act
must provide for a training program for agency personnel. The training
program must:
(a) Include initial in-service training for newly appointed staff,
and continuing agency training opportunities to improve the operation of
the program. The training program may also include short-term and long-
term training at educational institutions through grants to institutions
or by direct financial assistance to students enrolled in institutions
who are agency employees or persons preparing for employment with the
State or local agency;
(b) Be related to job duties performed or to be performed by the
persons trained, and be consistent with the program objectives of the
agency; and
(c) Be described in an annual training plan prepared prior to the
beginning of the fiscal year. Copies of the training plan shall be made
available upon request to the Regional Office of Family
[[Page 113]]
Assistance for review by the Federal staff.
[45 FR 29833, May 6, 1980, as amended at 46 FR 29264, June 1, 1981]
Sec. 235.63 Conditions for FFP.
(a) Who may be trained. FFP is available only for training provided
personnel employed in all classes of positions, volunteers, and persons
preparing for employment by the State or local agency administering the
program.
(b) When FFP is available. FFP is available for personnel employed
and persons preparing for employment by the State or local agency
provided the following conditions are met, and with the following
limitations:
(1) Employees in full-time, long-term training make a commitment to
work in the agency for a period of time equal to the period for which
financial assistance is granted. A State agency may exempt an employee
from fulfilling this commitment only if failure to continue in
employment is due to death, disability, employment in a financial
assistance program in a public assistance agency in another State, or
other emergent circumstances determined by the single State agency head
to be valid for exemption;
(2) An employee retains his or her rights and benefits in the agency
while on full-time, long-term training leave;
(3) Persons preparing for employment are selected by the State
agency and accepted by the school;
(4) Persons preparing for employment are pursuing educational
programs approved by the State agency;
(5) Persons preparing for employment are committed to work for State
or local agency for a period of time at least equal to the period for
which financial assistance is granted if employment is offered within 2
months after training is completed;
(6) The State or local agency offers the individual preparing for
employment a job upon completion of training unless precluded by merit
system requirements, legislative budget cuts, position freezes, or other
circumstances beyond the agency's control; and if unable to offer
employment, releases the individual from his or her commitment;
(7) The State agency keeps a record of the employment of persons
trained. If the persons are not employed by the State or local agency,
the record specifies the reason for non-employment;
(8) The State agency evaluates the training programs; and
(9) Any recoupment of funds by the State from trainees failing to
fulfill their commitment under this section shall be treated as a refund
and deducted from total training costs for the purpose of determining
net costs for FFP.
(c) Grants to educational institutions. FFP is available in payments
for services rendered under grants to educational institutions provided
all of the following conditions are met:
(1) Grants are made for the purpose of developing, expanding, or
improving training for personnel employed by the State or local agency
or preparing for employment by the State or local agency administering
the program. Grants are made for an educational program (curriculum
development, classroom instruction, field instruction, or any
combination of these) that is directly related to the agency's program.
Grants are made for not more than 3 years, but may be renewed, subject
to the conditions of this section;
(2) Grants are made to educational institutions and programs that
are accredited by the appropriate institutional accrediting body
recognized by the U.S. Commissioner of Education. When a specialized
program within the institution for which there is a specialized
accrediting body is used, that program must be accredited by or have
pre-accreditation status from that body. (Part 149 of this title
explains the requirements and procedures for obtaining recognition as an
accrediting agency or association. Lists of currently recognized
accrediting bodies are published in the Federal Register periodically.
See also Nationally Recognized Accrediting Agencies and Associations
published by the Office of Education);
(3) The State agency has written policies establishing conditions
and procedures for such grants;
(4) Each grant describes objectives in terms of how the educational
program is related to the financial assistance
[[Page 114]]
programs and how it is designed to meet the State or local agency's
manpower needs; and
(5) An evaluation of the educational program funded by each grant is
made no later than the close of the second year of the grant. The
evaluation shall be conducted by representatives from the educational
institution and the State agency to determine whether conditions and
objectives described in the grant are being met. If the educational
program does not meet these conditions and objectives, payment shall be
terminated no later than the close of the second year of the grant.
[45 FR 29834, May 6, 1980]
Sec. 235.64 FFP rates, and activities and costs matchable as training expenditures.
Under title I, IV-A, X, XIV, or XVI(AABD) of the Act, FFP is
available at the rate of 50 percent for the following costs:
(a) Salaries, fringe benefits, travel and per diem for:
(1) Staff development personnel (including support staff) assigned
full time to training functions and;
(2) Staff development personnel assigned part time to training
functions to the extent time is spent performing such functions.
(b) For agency training sessions, FFP is available for:
(1) Salaries, fringe benefits, travel and per diem for employees in
initial in-service training of at least one week;
(2) Travel and per diem for employees in agency training sessions
away from the employee's work site, or in institutes, seminars or
workshops related to the job and sponsored by professional
organizations;
(3) Salaries, fringe benefits, travel and per diem for experts
outside the agency engaged to develop or conduct special programs; and
(4) Costs of space, postage, teaching supplies, purchase or
development of teaching material and equipment, and costs of maintaining
and operating the agency library as an essential resource to the
agency's training program.
(c) For training and education outside of the agency, FFP is
available for:
(1) Salaries, fringe benefits, dependency allowance, travel,
tuition, books, and educational supplies for employees in full-time,
long-term training programs (with no assigned agency duties);
(2) Salaries, fringe benefits, travel, tuition, books, and
educational supplies for employees in full-time, short-term training
programs of four or more consecutive work weeks;
(3) Travel, per diem, tuition, books and educational supplies for
employees in short-term training programs of less than four consecutive
work weeks, or part-time training programs; and
(4) Stipends, travel, tuition, books and educational supplies for
persons preparing for employment with the State or local agency.
(d) FFP is available for payments to educational institutions, as
described in Sec. 235.63(c) for salaries, fringe benefits, and travel
of instructors, clerical assistance, teaching materials and equipment.
[45 FR 29834, May 6, 1980, as amended at 47 FR 5683, Feb. 5, 1982; 59 FR
12861, Mar. 18, 1994]
Sec. 235.65 Activities and costs not matchable as training expenditures.
FFP is not available for the following expenditures as training
costs; however, the expenditures described in this section may be
matched as administrative costs, if conditions for such matching are
met:
(a) Salaries of supervisors (day-to-day supervision of staff is not
a training activity); and
(b) Employment of students on a temporary basis, such as in the
summertime.
[45 FR 29835, May 6, 1980]
Sec. 235.66 Sources of State funds.
(a) Public funds. Public funds may be considered as the State's
share in claiming Federal reimbursement where the funds:
(1) Are appropriated directly to the State or local agency, or
transferred from another public agency (including Indian tribes) to the
State or local agency and under its administrative
[[Page 115]]
control, or certified by the contributing public agency as representing
expenditures eligible for FFP under Sec. Sec. 235.60-235.66;
(2) Are not used to match other Federal funds; and
(3) Are not federal funds, or are Federal funds authorized by
Federal law to be used to match other Federal funds.
(b) Private funds. Funds donated from private sources may be
considered as the State's share in claiming Federal reimbursement only
where the funds are:
(1) Transferred to the State or local agency and under its
administrative control;
(2) Donated without any restriction which would require their use
for the training of a particular individual or at particular facilities
or institutions; and
(3) Do not revert to the donor's facility or use.
[45 FR 29835, May 6, 1980]
Sec. 235.70 Prompt notice to child support or Medicaid agency.
(a) A State plan under title IV-A of the Social Security Act must
provide for prompt notice to the State or local child support agency
designated pursuant to section 454(3) of the Social Security Act and to
the State title XIX agency, as appropriate, whenever:
(1) Aid is furnished to a child who has been deserted or abandoned
by a parent, to the parent(s) with whom the child lives, or to a
pregnant woman under Sec. 233.90(c)(2)(iv), or
(2) Any of the persons in paragraph (a)(1) of this section is deemed
to be a recipient of aid under Sec. 233.20(a)(3)(viii)(D).
(b) In this section:
(1) Aid means Aid to Families with Dependent Children, or AFDC
Foster Care.
(2) Prompt notice means written notice including a copy of the AFDC
case record, or all relevant information as prescribed by the child
support agency. Prompt notice must also include all relevant information
as prescribed by the State medicaid agency for the pursuit of liable
third parties. The prompt notice shall be provided within two working
days of the furnishing of aid or the determination that an individual is
a recipient under Sec. 233.20(a)(3)(viii)(D). The title IV-A, IV-D and
XIX agencies may agree to provide notice immediately upon the filing of
an application for assistance.
(3) Furnish means the date on which cash is given to the family, a
check or warrant is mailed to the family, a deposit is made in a bank
for the family, or other similar circumstances in which an assistance
payment is made to the family, or the date on which individuals are
determined to be recipients under Sec. 233.20(a)(3)(viii)(D).
(4) A child who has been deserted or abandoned by a parent means any
child whose eligibility for AFDC is based on continued absence of a
parent from the home, and includes a child born out of wedlock without
regard to whether the paternity of such child has been established.
[47 FR 5683, Feb. 5, 1982, as amended at 56 FR 8933, Mar. 4, 1991]
Sec. 235.110 Fraud.
State plan requirements: A State plan under title I, IV-A, X, XIV,
or XVI of the Social Security Act must provide:
(a) That the State agency will establish and maintain:
(1) Methods and criteria for identifying situations in which a
question of fraud in the program may exist, and
(2) Procedures developed in cooperation with the State's legal
authorities for referring to law enforcement officials situations in
which there is valid reason to suspect that fraud has been practiced.
The definition of fraud for purposes of this section will be determined
in accordance with State law.
(b) For methods of investigation of situations which there is a
question of fraud, that do not infringe on the legal rights of persons
involved and are consistent with the principles recognized as affording
due process of law.
(c) For the designation of official position(s) responsible for
referral of situations involving suspected fraud to the proper
authorities.
[36 FR 3869, Feb. 27, 1971]
[[Page 116]]
PART 237_FISCAL ADMINISTRATION OF FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
Authority: Section 1102 of the Social Security Act (42 U.S.C. 1302);
49 Stat. 647, as amended.
Sec. 237.50 Recipient count, Federal financial participation.
Pursuant to the formulas in sections 3, 403, 1003, 1118, 1121, 1403,
and 1603 of the Social Security Act, it is necessary to identify
expenditures that may be included in claims for Federal financial
participation. The quarterly statement of expenditures and recoveries
which is required for OAA, AFDC, AB, APTD, and AABD must include, as a
part of the basis for computing the amount of Federal participation in
such expenditures, the number of eligible recipients each month.
However, where the State is making claims under section 1118 of the Act
or under optional provisions for Federal sharing specified in such
paragraphs no recipient count is involved. Vendor payments for medical
care may not be considered if the State has a plan approved under title
XIX of the Act. The procedures for determining recipient count are set
forth in paragraphs (a), (b) and (c) of this section.
(a) Adult assistance categories. For each adult assistance category,
under title I, X, XIV, or XVI, of the Act, the recipient count for any
month may include:
(1) Eligible recipients who receive money payments or in whose
behalf protective payments are made for that month:
Provided, That such payments are not excluded from Federal financial
participation under the provisions of Sec. 233.145(c) of this chapter;
plus
(2) Other eligible recipients in whose behalf payments are made for
institutional services in intermediate care facilities for that month,
but only in a State which does not have in effect a plan approved under
Title XIX of the Act. (See Sec. 233.145(b)(2) of this chapter.)
(b) AFDC category. For the AFDC category under title IV, part A, of
the Act:
(1) The recipient count for any month includes:
(i) Eligible recipients in families which receive a money payment,
plus
(ii) Eligible recipients in families not otherwise counted on whose
behalf protective or nonmedical vendor assistance payments are made for
such month in accordance with the vendor payment provisions at Sec.
234.60, provided that such payments are not excluded from Federal
financial participation under the provisions of Sec. 233.145(c) of this
chapter.
(2) For the purpose of this provision, recipients means, if
otherwise eligible:
(i) Children;
(ii) In a home with no parent who is the caretaker relative, an
otherwise eligible relative of specified degree;
(iii) Parent(s);
(iv) The spouse of such parent, in the case of AFDC eligibility due
to incapacity or unemployment;
(3) As used in paragraph (b)(2)(iii) of this section, the term
parent means the natural or adoptive parent, or the stepparent who is
married to the child's natural or adoptive parent and is legally
obligated to support the child under a State law of general
applicability which requires stepparents to support stepchildren to the
same extent that natural or adoptive parents are required to support
their children; and the term ``spouse'' as used in paragraph (b)(2)(iv)
of this section means an individual who is the husband or wife of the
child's own parent, as defined above, by reason of a legal marriage as
defined under State law.
(4) Where there are two or more dependent children living in a place
of residence with two other persons and each of such other persons is a
relative who has responsibility for the care and control of one or more
of the dependent children, there may be two AFDC families (assistance
units), if neither family includes a parent or sibling included in the
other family pursuant to Sec. 206.10 (a)(1)(vii).
(c) Essential person. An essential person or other ineligible person
who is living with the eligible person may not be counted as a
recipient.
[38 FR 32914, Nov. 29, 1973, as amended at 57 FR 30161, July 8, 1992]
[[Page 117]]
PART 260_GENERAL TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) PROVISIONS--Table of Contents
Subpart A_What Provisions Generally Apply to the TANF Program?
Sec.
260.10 What does this part cover?
260.20 What is the purpose of the TANF program?
260.30 What definitions apply under the TANF regulations?
260.31 What does the term ``assistance'' mean?
260.32 What does the term ``WtW cash assistance'' mean?
260.33 When are expenditures on State or local tax credits allowable
expenditures for TANF-related purposes?
260.34 When do the Charitable Choice provisions of TANF apply?
260.35 What other Federal laws apply to TANF?
260.40 When are these provisions in effect?
Subpart B_What Special Provisions Apply to Victims of Domestic Violence?
260.50 What is the purpose of this subpart?
260.51 What definitions apply to this subpart?
260.52 What are the basic provisions of the Family Violence Option
(FVO)?
260.54 Do States have flexibility to grant good cause domestic violence
waivers?
260.55 What are the additional requirements for Federal recognition of
good cause domestic violence waivers?
260.58 What penalty relief is available to a State whose failure to meet
the work participation rates is attributable to providing
federally recognized good cause domestic violence waivers?
260.59 What penalty relief is available to a State that failed to comply
with the five-year limit on Federal assistance because it
provided federally recognized good cause domestic violence
waivers?
Subpart C_What Special Provisions Apply to States That Were Operating
Programs Under Approved Waivers?
260.70 What is the purpose of this subpart?
260.71 What definitions apply to this subpart?
260.72 What basic requirements must State demonstration components meet
for the purpose of determining if inconsistencies exist with
respect to work requirements or time limits?
260.73 How do existing welfare reform waivers affect the participation
rates and work rules?
260.74 How do existing welfare reform waivers affect the application of
the Federal time-limit provisions?
260.75 If a State is claiming a waiver inconsistency for work
requirements or time limits, what must the Governor certify?
260.76 What special rules apply to States that are continuing
evaluations of their waiver demonstrations?
Authority: 42 U.S.C. 601, 601 note, 603, 604, 606, 607, 608, 609,
610, 611, 619, and 1308.
Source: 64 FR 17878, Apr. 12, 1999, unless otherwise noted.
Subpart A_What Rules Generally Apply to the TANF Program?
Sec. 260.10 What does this part cover?
This part includes regulatory provisions that generally apply to the
Temporary Assistance for Needy Families (TANF) program.
Sec. 260.20 What is the purpose of the TANF program?
The TANF program has the following four purposes:
(a) Provide assistance to needy families so that children may be
cared for in their own homes or in the homes of relatives;
(b) End the dependence of needy parents on government benefits by
promoting job preparation, work, and marriage;
(c) Prevent and reduce the incidence of out-of-wedlock pregnancies
and establish annual numerical goals for preventing and reducing the
incidence of these pregnancies; and
(d) Encourage the formation and maintenance of two-parent families.
Sec. 260.30 What definitions apply under the TANF regulations?
The following definitions apply under parts 260 through 265 of this
chapter:
ACF means the Administration for Children and Families.
Act means Social Security Act, unless otherwise specified.
Adjusted State Family Assistance Grant, or adjusted SFAG, means the
SFAG amount, minus any reductions for Tribal Family Assistance Grants
paid to Tribal grantees on behalf of Indian families residing in the
State and any transfers to the Social Services
[[Page 118]]
Block Grant or the Child Care and Development Block Grant.
Administrative costs has the meaning specified at Sec. 263.0(b) of
this chapter.
Adult means an individual who is not a ``minor child,'' as defined
elsewhere in this section.
AFDC means Aid to Families with Dependent Children.
Aid to Families with Dependent Children means the welfare program in
effect under title IV-A of prior law.
Assistance has the meaning specified at Sec. 260.31.
Basic MOE means the expenditure of State funds that must be made in
order to meet the MOE requirement at section 409(a)(7) of the Act.
Cash assistance, when provided to participants in the Welfare-to-
Work program (WtW), has the meaning specified at Sec. 260.32.
CCDBG means the Child Care and Development Block Grant Act of 1990,
as amended, 42 U.S.C. 9858 et seq.
CCDF means the Child Care and Development Fund, or those child care
programs and services funded either under section 418(a) of the Act or
CCDBG.
Commingled State TANF expenditures means expenditures of State funds
that are made within the TANF program and commingled with Federal TANF
funds.
Contingency fund means Federal TANF funds available under section
403(b) of the Act, and contingency funds means the Federal monies made
available to States under that section. Neither term includes any State
funds expended pursuant to section 403(b).
Contingency fund MOE means the MOE expenditures that a State must
make in order to meet the MOE requirements at sections 403(b)(6) and
409(a)(10) of the Act and subpart B of part 264 of this chapter and
retain contingency funds made available to the State. The only
expenditures that qualify for Contingency Fund MOE are State TANF
expenditures.
Control group is a term relevant to continuation of a ``waiver'' and
has the meaning specified at Sec. 260.71.
Countable State expenditures has the meaning specified at Sec.
264.0 of this chapter.
Discretionary fund of the CCDF refers to child care funds
appropriated under the CCDBG.
EA means Emergency Assistance.
Eligible State means a State that, during the 27-month period ending
with the close of the first quarter of the fiscal year, has submitted a
TANF plan that we have determined is complete.
Emergency assistance means the program option available to States
under sections 403(a)(5) and 406(e) of prior law to provide short-term
assistance to needy families with children.
Expenditure means any amount of Federal TANF or State MOE funds that
a State expends, spends, pays out, or disburses consistent with the
requirements of parts 260 through 265 of this chapter. It may include
expenditures on the refundable portions of State or local tax credits,
if they are consistent with the provisions at Sec. 260.33. It does not
include any amounts that merely represent avoided costs or foregone
revenue. Avoided costs include such items as contractor penalty payments
for poor performance and purchase price discounts, rebates, and credits
that a State receives. Foregone revenue includes State tax provisions--
such as waivers, deductions, exemptions, or nonrefundable tax credits--
that reduce a State's tax revenue.
Experimental group is a term relevant to continuation of a
``waiver'' and has the meaning specified at Sec. 260.71.
FAG has the meaning specified at Sec. 264.0(b) of this chapter.
Family Violence Option (or FVO) has the meaning specified at Sec.
260.51.
FAMIS means the automated statewide management information system
under sections 402(a)(30), 402(e), and 403 of prior law.
Federal expenditures means expenditures by a State of Federal TANF
funds.
Federal TANF funds means all funds provided to the State under
section 403 of the Act except WtW funds awarded under section 403(a)(5),
including the SFAG, any bonuses, supplemental grants, or contingency
funds.
Federally recognized good cause domestic violence waiver has the
meaning specified at Sec. 260.51.
[[Page 119]]
Fiscal year means the 12-month period beginning on October 1 of the
preceding calendar year and ending on September 30.
FY means fiscal year.
Good cause domestic violence waiver has the meaning specified at
Sec. 260.51.
Governor means the Chief Executive Officer of the State. It thus
includes the Governor of each of the 50 States and the Territories and
the Mayor of the District of Columbia.
IEVS means the Income and Eligibility Verification System operated
pursuant to the provisions in section 1137 of the Act.
Inconsistent is a term relevant to continuation of a ``waiver'' and
has the meaning specified at Sec. 260.71.
Indian, Indian Tribe and Tribal Organization have the meaning given
such terms by section 4 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b), except that the term ``Indian tribe''
means, with respect to the State of Alaska, only the Metlakatla Indian
Community of the Annette Islands Reserve and the following Alaska Native
regional nonprofit corporations:
(1) Arctic Slope Native Association;
(2) Kawerak, Inc.;
(3) Maniilaq Association;
(4) Association of Village Council Presidents;
(5) Tanana Chiefs Council;
(6) Cook Inlet Tribal Council;
(7) Bristol Bay Native Association;
(8) Aleutian and Pribilof Island Association;
(9) Chugachmuit;
(10) Tlingit Haida Central Council;
(11) Kodiak Area Native Association; and
(12) Copper River Native Association.
Individual Development Account, or IDA, has the meaning specified at
Sec. 263.20 of this chapter.
Job Opportunities and Basic Skills Training Program means the
program under title IV-F of prior law to provide education, training and
employment services to welfare recipients.
JOBS means the Job Opportunities and Basic Skills Training Program.
Minor child means an individual who:
(1) Has not attained 18 years of age; or
(2) Has not attained 19 years of age and is a full-time student in a
secondary school (or in the equivalent level of vocational or technical
training).
MOE means maintenance-of-effort.
Needy State is a term that pertains to the provisions on the
Contingency Fund and the penalty for failure to meet participation
rates. It means, for a month, a State where:
(1)(i) The average rate of total unemployment (seasonally adjusted)
for the most recent 3-month period for which data are published for all
States equals or exceeds 6.5 percent; and
(ii) The average rate of total unemployment (seasonally adjusted)
for such 3-month period equals or exceeds 110 percent of the average
rate for either (or both) of the corresponding 3-month periods in the
two preceding calendar years; or
(2) The Secretary of Agriculture has determined that the average
number of individuals participating in the Food Stamp program in the
State has grown at least 10 percent in the most recent 3-month period
for which data are available.
Noncustodial parent means a parent of a minor child who:
(1) Lives in the State; and
(2) Does not live in the same household as the minor child.
Prior law means the provisions of title IV-A and IV-F of the Act in
effect as of August 21, 1996. They include provisions related to Aid to
Families with Dependent Children (or AFDC), Emergency Assistance (or
EA), Job Opportunities and Basic Skills Training (or JOBS), and FAMIS.
PRWORA means the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, or Pub. L. 104-193, 42 U.S.C. 1305 note.
Qualified Aliens has the meaning prescribed under section 431 of
PRWORA, as amended, 8 U.S.C. 1641.
Qualified State Expenditures means the total amount of State funds
expended during the fiscal year that count for basic MOE purposes. It
includes expenditures, under any State program, for any of the following
with respect to eligible families:
(1) Cash assistance;
(2) Child care assistance;
[[Page 120]]
(3) Educational activities designed to increase self-sufficiency,
job training, and work, excluding any expenditure for public education
in the State except expenditures involving the provision of services or
assistance of an eligible family that is not generally available to
persons who are not members of an eligible family;
(4) Any other use of funds allowable under subpart A of part 263 of
this chapter; and
(5) Administrative costs in connection with the matters described in
paragraphs (1), (2), (3) and (4) of this definition, but only to the
extent that such costs do not exceed 15 percent of the total amount of
qualified State expenditures for the fiscal year.
Secretary means Secretary of the Department of Health and Human
Services or any other Department official duly authorized to act on the
Secretary's behalf.
Segregated State TANF expenditures means expenditures of State funds
within the TANF program that are not commingled with Federal TANF funds.
Separate State program, or SSP, means a program operated outside of
TANF in which the expenditures of State funds may count for basic MOE
purposes.
SFAG means State family assistance grant, as defined in this
section.
SFAG payable means the SFAG amount, reduced, as appropriate, for any
Tribal Family Assistance Grants made on behalf of Indian families
residing in the State and any penalties imposed on a State under this
chapter.
Single audit means an audit or supplementary review conducted under
the authority of the Single Audit Act at 31 U.S.C. chapter 75.
Social Services Block Grant means the social services program
operated under title XX of the Act, pursuant to 42 U.S.C. 1397.
SSBG means the Social Services Block Grant.
State means the 50 States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, and American Samoa, unless otherwise specified.
State agency means the agency that the Governor certifies as the
administering and supervising agency for the TANF program, pursuant to
section 402(a)(4) of the Act.
State family assistance grant means the amount of the basic block
grant allocated to each eligible State under the formula at section
403(a)(1) of the Act.
State MOE expenditures means the expenditure of State funds that may
count for purposes of the basic MOE requirements at section 409(a)(7) of
the Act and the Contingency Fund MOE requirements at sections 403(b)(4)
and 409(a)(10) of the Act.
State TANF expenditures means the expenditure of State funds within
the TANF program.
TANF means The Temporary Assistance for Needy Families Program.
TANF program means a State program of family assistance operated by
an eligible State under its State TANF plan.
Territories means the Commonwealth of Puerto Rico, the United States
Virgin Islands, Guam, and American Samoa.
Title IV-A refers to the title and part of the Act that now includes
TANF, but previously included AFDC and EA. For the purpose of the TANF
program regulations, this term does not include child care programs
authorized and funded under section 418 of the Act, or their
predecessors, unless we specify otherwise.
Tribal family assistance grant means a grant paid to a Tribe that
has an approved Tribal family assistance plan under section 412(a)(1) of
the Act.
Tribal grantee means a Tribe that receives Federal TANF funds to
operate a Tribal TANF program under section 412(a) of the Act.
Tribal TANF program means a TANF program developed by an eligible
Tribe, Tribal organization, or consortium and approved by us under
section 412 of the Act.
Tribe means Indian Tribe or Tribal organization, as defined
elsewhere in this section. The definition may include Tribal consortia
(i.e., groups of federally recognized Tribes or Alaska Native entities
that have banded together in a formal arrangement to develop and
administer a Tribal TANF program).
Victim of domestic violence has the meaning specified at Sec.
260.51.
[[Page 121]]
Waiver, when used in subpart C of this part, has the meaning
specified at Sec. 260.71.
We (and any other first person plural pronouns) means the Secretary
of Health and Human Services or any of the following individuals or
organizations acting in an official capacity on the Secretary's behalf:
the Assistant Secretary for Children and Families, the Regional
Administrators for Children and Families, the Department of Health and
Human Services, and the Administration for Children and Families.
Welfare-to-Work means the new program for funding work activities at
section 403(a)(5) of the Act.
WtW means Welfare-to-Work.
WtW cash assistance has the meaning specified at Sec. 260.32.
[64 FR 17878, Apr. 12, 1999; 64 FR 40291, July 26, 1999]
Sec. 260.31 What does the term ``assistance'' mean?
(a)(1) The term ``assistance'' includes cash, payments, vouchers,
and other forms of benefits designed to meet a family's ongoing basic
needs (i.e., for food, clothing, shelter, utilities, household goods,
personal care items, and general incidental expenses).
(2) It includes such benefits even when they are:
(i) Provided in the form of payments by a TANF agency, or other
agency on its behalf, to individual recipients; and
(ii) Conditioned on participation in work experience or community
service (or any other work activity under Sec. 261.30 of this chapter).
(3) Except where excluded under paragraph (b) of this section, it
also includes supportive services such as transportation and child care
provided to families who are not employed.
(b) It excludes:
(1) Nonrecurrent, short-term benefits that:
(i) Are designed to deal with a specific crisis situation or episode
of need;
(ii) Are not intended to meet recurrent or ongoing needs; and
(iii) Will not extend beyond four months.
(2) Work subsidies (i.e., payments to employers or third parties to
help cover the costs of employee wages, benefits, supervision, and
training);
(3) Supportive services such as child care and transportation
provided to families who are employed;
(4) Refundable earned income tax credits;
(5) Contributions to, and distributions from, Individual Development
Accounts;
(6) Services such as counseling, case management, peer support,
child care information and referral, transitional services, job
retention, job advancement, and other employment-related services that
do not provide basic income support; and
(7) Transportation benefits provided under a Job Access or Reverse
Commute project, pursuant to section 404(k) of the Act, to an individual
who is not otherwise receiving assistance.
(c) The definition of the term assistance specified in paragraphs
(a) and (b) of this section:
(1) Does not apply to the use of the term assistance at part 263,
subpart A, or at part 264, subpart B, of this chapter; and
(2) Does not preclude a State from providing other types of benefits
and services in support of the TANF goal at Sec. 260.20(a).
Sec. 260.32 What does the term ``WtW cash assistance'' mean?
(a) For the purpose of Sec. 264.1(b)(1)(iii) of this chapter, WtW
cash assistance only includes benefits that:
(1) Meet the definition of assistance at Sec. 260.31; and
(2) Are directed at basic needs.
(b) Thus, it includes benefits described in paragraphs (a)(1) and
(a)(2) of Sec. 260.31, but excludes benefits described in paragraph
(a)(3) of Sec. 260.31.
(c) It only includes benefits identified in paragraphs (a) and (b)
of this section when they are provided in the form of cash payments,
checks, reimbursements, electronic funds transfers, or any other form
that can legally be converted to currency.
Sec. 260.33 When are expenditures on State or local tax credits allowable expenditures for TANF-related purposes?
(a) To be an allowable expenditure for TANF-related purposes, any
tax
[[Page 122]]
credit program must be reasonably calculated to accomplish one of the
purposes of the TANF program, as specified at Sec. 260.20.
(b)(1) In addition, pursuant to the definition of expenditure at
Sec. 260.30, we would only consider the refundable portion of a State
or local tax credit to be an allowable expenditure.
(2) Under a State Earned Income Tax Credit (EITC) program, the
refundable portion that may count as an expenditure is the amount that
exceeds a family's State income tax liability prior to application of
the EITC. (The family's tax liability is the amount owed prior to any
adjustments for credits or payments.) In other words, we would count
only the portion of a State EITC that the State refunds to a family and
that is above the amount of EITC used as credit towards the family's
State income tax liability.
(3) For other refundable (and allowable) State and local tax
credits, such as refundable dependent care credits, the refundable
portion that would count as an expenditure is the amount of the credit
that exceeds the taxpayer's tax liability prior to the application of
the credit. (The taxpayer's liability is the amount owed prior to any
adjustments for credits or payments.) In other words, we would count
only the portion of the credit that the State refunds to the taxpayer
and that is above the amount of the credit applied against the
taxpayer's tax bill.
Sec. 260.34 When do the Charitable Choice provisions of TANF apply?
(a) These Charitable Choice provisions apply whenever a State or
local government uses Federal TANF funds or expends State and local
funds used to meet maintenance-of-effort (MOE) requirements of the TANF
program to directly procure services and benefits from non-governmental
organizations, or provides TANF beneficiaries with certificates,
vouchers, or other forms of indirect disbursement redeemable from such
organizations. For purposes of this section:
(1) Direct funding or funds provided directly means that the
government or an intermediate organization with the same duties as a
governmental entity under this part selects the provider and purchases
the needed services straight from the provider (e.g., via a contract or
cooperative agreement).
(2) Indirect funding or funds provided indirectly means placing the
choice of service provider in the hands of the beneficiary, and then
paying for the cost of that service through a voucher, certificate, or
other similar means of payment.
(b)(1) Religious organizations are eligible, on the same basis as
any other organization, to participate in TANF as long as their Federal
TANF or State MOE funded services are provided consistent with the
Establishment Clause and the Free Exercise Clause of the First Amendment
to the United States Constitution.
(2) Neither the Federal government nor a State or local government
in its use of Federal TANF or State MOE funds shall, in the selection of
service providers, discriminate for or against an organization that
applies to provide, or provides TANF services or benefits on the basis
of the organization's religious character or affiliation.
(c) No Federal TANF or State MOE funds provided directly to
participating organizations may be expended for inherently religious
activities, such as worship, religious instruction, or proselytization.
If an organization conducts such activities, it must offer them
separately, in time or location, from the programs or services for which
it receives direct Federal TANF or State MOE funds under this part, and
participation must be voluntary for the beneficiaries of those programs
or services.
(d) A religious organization that participates in the TANF program
will retain its independence from Federal, State, and local governments
and may continue to carry out its mission, including the definition,
practice and expression of its religious beliefs, provided that it does
not expend Federal TANF or State MOE funds that it receives directly to
support any inherently religious activities, such as worship, religious
instruction, or proselytization. Among other things, faith-based
organizations may use space in their facilities to provide TANF-funded
services without removing religious art, icons, scriptures, or other
symbols.
[[Page 123]]
In addition, a Federal TANF or State MOE funded religious organization
retains the authority over its internal governance, and it may retain
religious terms in its organization's name, select its board members on
a religious basis, and include religious references in its
organization's mission statements and other governing documents.
(e) The participation of a religious organization in, or its receipt
of funds from, a TANF program does not affect that organization's
exemption provided under 42 U.S.C. 2000e-1 regarding employment
practices.
(f) A religious organization that receives Federal TANF or State MOE
funds shall not, in providing program services or benefits, discriminate
against a TANF applicant or recipient on the basis of religion, a
religious belief, a refusal to hold a religious belief, or a refusal to
actively participate in a religious practice.
(g)(1) If an otherwise eligible TANF applicant or recipient objects
to the religious character of a TANF service provider, the recipient is
entitled to receive services from an alternative provider to which the
individual has no religious objection. In such cases, the State or local
agency must refer the individual to an alternative provider of services
within a reasonable period of time, as defined by the State or local
agency. That alternative provider must be reasonably accessible and have
the capacity to provide comparable services to the individual. Such
services shall have a value that is not less than the value of the
services that the individual would have received from the program
participant to which the individual had such objection, as defined by
the State or local agency.
(2) The alternative provider need not be a secular organization. It
must simply be a provider to which the recipient has no religious
objection. States may adopt reasonable definitions of the terms
``reasonably accessible,'' ``a reasonable period of time,''
``comparable,'' ``capacity,'' and `` value that is not less than.'' We
expect States to apply these terms in a fair and consistent manner.
(3) The appropriate State or local governments that administer
Federal TANF or State MOE funded programs shall ensure that notice of
their right to alternative services is provided to applicants or
recipients. The notice must clearly articulate the recipient's right to
a referral and to services that reasonably meet the timeliness,
capacity, accessibility, and equivalency requirements discussed above.
(h) Religious organizations that receive Federal TANF and State MOE
funds are subject to the same regulations as other non-governmental
organizations to account, in accordance with generally accepted
auditing/accounting principles, for the use of such funds. Religious
organizations may keep Federal TANF and State MOE funds they receive for
services segregated in a separate account from non-governmental funds.
If religious organizations choose to segregate their funds in this
manner, only the Federal TANF and State MOE funds are subject to audit
by the government under the program.
(i) This section applies whenever a State or local organization uses
Federal TANF or State MOE funds to procure services and benefits from
non-governmental organizations, or redeems certificates, vouchers, or
other forms of disbursement from them whether with Federal funds, or
State and local funds claimed to meet the MOE requirements of section
409(a)(7) of the Social Security Act. Subject to the requirements of
paragraph (j), when State or local funds are used to meet the TANF MOE
requirements, the provisions apply irrespective of whether the State or
local funds are commingled with Federal funds, segregated, or expended
in separate State programs.
(j) Preemption. Nothing in this section shall be construed to
preempt any provision of a State constitution, or State statute that
prohibits or restricts the expenditure of segregated or separate State
funds in or by religious organizations.
(k) If a non-governmental intermediate organization, acting under a
contract or other agreement with a State or local government, is given
the authority under the contract or agreement to select non-governmental
organizations to provide Federal TANF or MOE funded services, the
intermediate organization must ensure that there is compliance with the
Charitable Choice
[[Page 124]]
statutory provisions and these regulations. The intermediate
organization retains all other rights of a non-governmental organization
under the Charitable Choice statute and regulations.
(l) Any party which seeks to enforce its right under this section
may assert a civil action for injunctive relief exclusively in an
appropriate State court against the entity or agency that allegedly
commits such violation.
[68 FR 56465, Sept. 30, 2003]
Sec. 260.35 What other Federal laws apply to TANF?
(a) Under section 408(d) of the Act, the following provisions of law
apply to any program or activity funded with Federal TANF funds:
(1) The Age Discrimination Act of 1975;
(2) Section 504 of the Rehabilitation Act of 1973;
(3) The Americans with Disabilities Act of 1990; and
(4) Title VI of the Civil Rights Act of 1964.
(b) The limitation on Federal regulatory and enforcement authority
at section 417 of the Act does not limit the effect of other Federal
laws, including Federal employment laws (such as the Fair Labor
Standards Act (FLSA), the Occupational Safety and Health Act (OSHA) and
unemployment insurance (UI)) and nondiscrimination laws. These laws
apply to TANF beneficiaries in the same manner as they apply to other
workers.
Sec. 260.40 When are these provisions in effect?
(a) In determining whether a State is subject to a penalty under
parts 261 through 265 of this chapter, we will not apply the regulatory
provisions in parts 260 through 265 of this chapter retroactively. We
will judge State actions that occurred prior to the effective date of
these rules and expenditures of funds received prior to the effective
date only against a reasonable interpretation of the statutory
provisions in title IV-A of the Act.
(b) The effective date of these rules is October 1, 1999.
Subpart B_What Special Provisions Apply to Victims of Domestic Violence?
Sec. 260.50 What is the purpose of this subpart?
Under section 402(a)(7) of the Act, under its TANF plan, a State may
elect to implement a special program to serve victims of domestic
violence and to waive program requirements for such individuals. This
subpart explains how adoption of these provisions affects the penalty
determinations applicable if a State fails to meet its work
participation rate or comply with the five-year limit on Federal
assistance.
Sec. 260.51 What definitions apply to this subpart?
Family Violence Option (or FVO) means the provision at section
402(a)(7) of the Act under which a State certifies in its State plan if
it has elected the option to implement comprehensive strategies for
identifying and serving victims of domestic violence.
Federally recognized good cause domestic violence waiver means a
good cause domestic violence waiver that meets the requirements at
Sec. Sec. 260.52(c) and 260.55.
Good cause domestic violence waiver means a waiver of one or more
program requirements granted by a State to a victim of domestic violence
under the FVO, as described at Sec. 260.52(c).
Victim of domestic violence means an individual who is battered or
subject to extreme cruelty under the definition at section
408(a)(7)(C)(iii) of the Act.
Sec. 260.52 What are the basic provisions of the Family Violence Option (FVO)?
Section 402(a)(7) of the Act provides that States electing the FVO
certify that they have established and are enforcing standards and
procedures to:
(a) Screen and identify individuals receiving TANF and MOE
assistance with a history of domestic violence, while maintaining the
confidentiality of such individuals;
(b) Refer such individuals to counseling and supportive services;
and
(c) Provide waivers, pursuant to a determination of good cause, of
normal
[[Page 125]]
program requirements to such individuals for so long as necessary in
cases where compliance would make it more difficult for such individuals
to escape domestic violence or unfairly penalize those who are or have
been victimized by such violence or who are at risk of further domestic
violence.
Sec. 260.54 Do States have flexibility to grant good cause domestic violence waivers?
(a) Yes; States have broad flexibility to grant these waivers to
victims of domestic violence. For example, they may determine which
program requirements to waive and decide how long each waiver might be
necessary.
(b) However, if a State wants us to take the waivers that it grants
into account in deciding if it has reasonable cause for failing to meet
its work participation rates or comply with the five-year limit on
Federal assistance, has achieved compliance or made significant progress
towards achieving compliance with such requirements during a corrective
compliance period, or qualifies for a reduction in its work penalty
under Sec. 261.51 of this chapter, the waivers must be federally
recognized good cause domestic violence waivers, within the meaning of
Sec. Sec. 260.52(c) and 260.55, and the State must submit the
information specified at Sec. 265.9(b)(5) of this chapter on its
strategies and procedures for serving victims of domestic violence and
the number of waivers granted.
Sec. 260.55 What are the additional requirements for Federal recognition of good cause domestic violence waivers?
To be federally recognized, good cause domestic violence waivers
must:
(a) Identify the specific program requirements that are being
waived;
(b) Be granted appropriately based on need, as determined by an
individualized assessment by a person trained in domestic violence and
redeterminations no less often than every six months;
(c) Be accompanied by an appropriate services plan that:
(1) Is developed by a person trained in domestic violence;
(2) Reflects the individualized assessment and any revisions
indicated by the redetermination; and
(3) To the extent consistent with Sec. 260.52(c), is designed to
lead to work.
Sec. 260.58 What penalty relief is available to a State whose failure to meet the work participation rates is attributable to providing federally recognized
good cause domestic violence waivers?
(a)(1) We will determine that a State has reasonable cause if its
failure to meet the work participation rates was attributable to
federally recognized good cause domestic violence waivers granted to
victims of domestic violence.
(2) To receive reasonable cause under the provisions of Sec.
262.5(b) of this chapter, the State must provide evidence that it
achieved the applicable rates, except with respect to any individuals
who received a federally recognized good cause domestic violence waiver
of work participation requirements. In other words, it must demonstrate
that it met the applicable rates when such waiver cases are removed from
the calculations at Sec. Sec. 261.22(b) and 261.24(b) of this chapter.
(b)(1) We will reduce a State's penalty based on the degree of
noncompliance to the extent that its failure to meet the work
participation rates was attributable to federally recognized good cause
domestic violence waivers.
(2) To receive a reduction based on degree of noncompliance under
the provisions of Sec. 261.51 of this chapter, a State granting
federally recognized good cause domestic violence waivers of work
participation requirements must demonstrate that it achieved
participation rates above the threshold at Sec. 261.51(b)(3) of this
chapter, when such waiver cases are removed from the calculations at
Sec. Sec. 261.22(b) and 261.24(b) of this chapter.
(c) We may take federally recognized good cause domestic violence
waivers of work requirements into consideration in deciding whether a
State has achieved compliance or made significant progress towards
achieving compliance in meeting the work participation rates during a
corrective compliance period.
[[Page 126]]
(d) To receive the penalty relief specified in paragraphs (a), (b),
and (c) of this section, the State must submit the information specified
at Sec. 265.9(b)(5) of this chapter.
Sec. 260.59 What penalty relief is available to a State that failed to comply with the five-year limit on Federal assistance because it provided federally
recognized good cause domestic violence waivers?
(a)(1) We will determine that a State has reasonable cause if it
failed to comply with the five-year limit on Federal assistance because
of federally recognized good cause domestic violence waivers granted to
victims of domestic violence.
(2) More specifically, to receive reasonable cause under the
provisions at Sec. 264.3(b) of this chapter, a State must demonstrate
that:
(i) It granted federally recognized good cause domestic violence
waivers to extend time limits based on the need for continued assistance
due to current or past domestic violence or the risk of further domestic
violence; and
(ii) When individuals and their families are excluded from the
calculation, the percentage of families receiving federally funded
assistance for more than 60 months did not exceed 20 percent of the
total.
(b) We may take federally recognized good cause domestic violence
waivers to extend time limits into consideration in deciding whether a
State has achieved compliance or made significant progress towards
achieving compliance in meeting the five-year limit on Federal
assistance during a corrective compliance period.
(c) To receive the penalty relief specified in paragraphs (a) and
(b) of this section, the State must submit the information specified at
Sec. 265.9(b)(5) of this chapter.
[64 FR 17878, Apr. 12, 1999]
Subpart C_What Special Provisions Apply to States that Were Operating
Programs Under Approved Waivers?
Sec. 260.70 What is the purpose of this subpart?
(a) Under section 415 of the Act, if a State was granted a waiver
under section 1115 of the Act and that waiver was in effect on August
22, 1996, the amendments made by PRWORA do not apply for the period of
the waiver, to the extent that they are inconsistent with the waiver and
the State elects to continue its waiver.
(b) Identification of waiver inconsistencies is relevant for the
determination of penalties in three areas:
(1) Under Sec. 261.50 of this chapter for failing to meet the work
participation rates at part 261 of this chapter;
(2) Under Sec. 264.2 of this chapter for failing to comply with the
five-year limit on Federal assistance at subpart A of part 264 of this
chapter; and
(3) Under Sec. 261.54 of this chapter for failing to impose
sanctions on individuals who fail to work.
(c) This subpart explains how we will determine waiver
inconsistencies and apply them in the penalty determination process for
these penalties.
Sec. 260.71 What definitions apply to this subpart?
(a) Inconsistent means that complying with the TANF work
participation or sanction requirements at section 407 of the Act or the
time-limit requirement at section 408(a)(7) of the Act would necessitate
that a State change a policy reflected in an approved waiver.
(b) Waiver consists of the work participation or time-limit
component of the State's demonstration project under section 1115 of the
Act. The component includes the revised AFDC requirements indicated in
the State's waiver list, as approved by the Secretary under the
authority of section 1115, and the associated AFDC provisions that did
not need to be waived.
(c) Control group and experimental group have the meanings specified
in the terms and conditions of the State's demonstration.
[[Page 127]]
Sec. 260.72 What basic requirements must State demonstration components meet for the purpose of determining if inconsistencies exist with respect to work
requirements or time limits?
(a) The policies must be consistent with the requirements of section
415 of the Act and the requirements of this subpart.
(b) The policies must be within the scope of the approved waivers
both in terms of geographical coverage and the coverage of the types of
cases specified in the waiver approval package.
(c) The State must have applied its waiver policies on a continuous
basis from the date that it implemented its TANF program, except that it
may have adopted modifications that have the effect of making its
policies more consistent with the provisions of PRWORA.
(d) An inconsistency may not apply beyond the earlier of the
following dates:
(1) The expiration of waiver authority as determined in accordance
with the demonstration terms and conditions; or
(2) For any specific inconsistency, the date upon which the State
discontinued the applicable waiver policy.
(e) The State must submit the Governor's certification specified in
Sec. 260.75.
(f) In general, the policies in this subpart do not have the effect
of delaying the date when a State might be subject to the work or time-
limit penalties at Sec. Sec. 261.50, 261.54, and 264.1 of this chapter
or the data collection requirements at part 265 of this chapter.
Sec. 260.73 How do existing welfare reform waivers affect the participation rates and work rules?
(a) If a State is implementing a work participation component under
a waiver, in accordance with this subpart, the provisions of section 407
of the Act will not apply in determining if a penalty should be imposed,
to the extent that the provision is inconsistent with the waiver.
(b) For the purpose of determining if the State's demonstration has
a work participation component, the waiver list for the demonstration
must include one or more specific provisions that directly correspond to
the work policies in section 407 of the Act (i.e., change allowable JOBS
activities, exemptions from JOBS participation, hours of required JOBS
participation, or sanctions for noncompliance with JOBS participation).
(c) Corresponding to the inconsistencies certified by the Governor
under Sec. 260.75:
(1) We will calculate the State's work participation rates, by:
(i) Excluding cases exempted from participation under the
demonstration component and, if applicable, experimental and control
cases not otherwise exempted, in calculating the rate;
(ii) Defining work activities as defined in the demonstration
component in determining the numerator; and
(iii) Including cases meeting the required number of hours of
participation in work activities in accordance with demonstration
component policy, in determining the numerator.
(2) We will determine whether a State is taking appropriate
sanctions when an individual refuses to work based on the State's
certified waiver policies.
(d) We will use the data submitted by States pursuant to Sec. 265.3
of this chapter to calculate and make public a State's work
participation rates under both the TANF requirements and the State's
alternative waiver requirements.
Sec. 260.74 How do existing welfare reform waivers affect the application of the Federal time-limit provisions?
(a)(1) If a State is implementing a time-limit component under a
waiver, in accordance with this subpart, the provisions of section
408(a)(7) of the Act will not apply in determining if a penalty should
be imposed, to the extent that they are inconsistent with the waiver.
(2) For the purpose of determining if the State's demonstration has
a time-limit component, the waiver list for the demonstration must
include provisions that directly correspond to the time-limit policies
enumerated in section 408(a)(7) of the Act (i.e., address
[[Page 128]]
which individuals or families are subject to, or exempt from,
terminations of assistance based solely on the passage of time or who
qualifies for extensions to the time limit).
(b)(1) Generally, under an approved waiver, except as provided in
paragraph (b)(3) of this section, a State will count, toward the Federal
five-year limit, all months for which the head-of-household or spouse of
the head-of-household subject to the State time limit receives
assistance with Federal TANF funds, just as it would if it did not have
an approved waiver.
(2) The State need not count, toward the Federal five-year limit,
any months for which a head-of-household or spouse of the head-of-
household receives assistance with Federal TANF funds while that
individual is exempt from the State's time limit under the State's
approved waiver.
(3) Where a State has continued a time limit under waivers that only
terminates assistance for adults, the State need not count, toward the
Federal five-year limit, any months for which an adult subject to the
State time limit receives assistance with Federal TANF funds.
(4) The State may continue to provide assistance with Federal TANF
funds for more than 60 months, without a numerical limit, to families
provided extensions to the State time limit, under the provisions of the
terms and conditions of the approved waiver.
(c) Corresponding to the inconsistencies certified by the Governor
under Sec. 260.75, we will calculate the State's time-limit exceptions
by:
(1) Excluding, from the determination of the number of months of
Federal assistance received by a family:
(i) Any month in which the adult(s) were exempt from the State's
time limit under the terms of an approved waiver or any months in which
the children received assistance under a waiver that only terminated
assistance to adults; and
(ii) If applicable, experimental and control group cases not
otherwise exempted; and
(2) Applying the State's waiver policies with respect to the
availability of extensions to the time limit.
Sec. 260.75 If a State is claiming a waiver inconsistency for work requirements or time limits, what must the Governor certify?
(a) The Governor of the State must certify in writing to the
Secretary that:
(1) The applicable policies have been continually applied in
operating the TANF program, as described in Sec. 260.72(c);
(2) The inconsistencies claimed by the State are within the scope of
the approved waivers, as described in Sec. 260.72(b);
(b) The certification must identify the specific inconsistencies
that the State chooses to continue with respect to work and time limits.
(1) If the waiver inconsistency claim includes work provisions, the
certification must specify the standards that will apply, in lieu of the
provisions in subparts B and C of part 261 of this chapter, to
determine:
(i) The number of two-parent and all-parent cases that are exempt
from participation, if any, for the purpose of determining the
denominator of the work participation rate;
(ii) The number of nonexempt two-parent and all-parent cases that
are participating in work activities for the purpose of determining the
numerator of the work participation rate, including standards applicable
to;
(A) Countable work activities; and
(B) Required hours of work for participation for individual
participants; and
(iii) The penalty against an individual or family when an individual
refuses to work.
(2) If the waiver inconsistency claim includes time-limit
provisions, the certification must include the standards that will
apply, in lieu of the provisions in Sec. 264.1 of this chapter, in
determining:
(i) Which families are counted toward the Federal time limit; and
(ii) Whether a family is eligible for an extension of its time limit
on federally funded assistance.
(3) If the State is continuing policies for evaluation purposes in
accordance with Sec. 260.76:
(i) The certification must specify any special work or time-limit
standards
[[Page 129]]
that apply to the control group and experimental group cases; and
(ii) The State may choose to exclude cases assigned to the
experimental and control groups, which are not otherwise exempt, for the
purpose of calculating the work participation rate or determining State
compliance related to limiting assistance to families including adults
who have received 60 months of Federal TANF assistance. In doing so, the
State may effectively exclude all experimental group cases and/or
control group cases, not otherwise exempt, but may not exclude
individual cases on a selective basis.
(c) The certification may include a claim of inconsistency with
respect to hours of required participation in work activities only if
the State has written evidence that, when implemented, the waiver
policies established specific requirements related to hours of work for
nonexempt individuals.
(d)(1) The Governor's certification must be provided no later than
October 1, 1999.
(2) If a State modifies its waiver policies in a way that has a
substantive effect on the determination of its work sanctions, or the
calculation of its work participation rates or its time-limit
exceptions, it must submit an amended certification no later than the
end of the fiscal quarter in which the modifications take effect.
Sec. 260.76 What special rules apply to States that are continuing evaluations of their waiver demonstrations?
If a State is continuing research that employs an experimental
design in order to complete an impact evaluation of a waiver
demonstration, the experimental and control groups may continue to be
subject to prior AFDC law, except as modified by the waiver.
PART 261_ENSURING THAT RECIPIENTS WORK--Table of Contents
Sec.
261.1 What does this part cover?
261.2 What definitions apply to this part?
Subpart A_What Are the Provisions Addressing Individual Responsibility?
261.10 What work requirements must an individual meet?
261.11 Which recipients must have an assessment under TANF?
261.12 What is an individual responsibility plan?
261.13 May an individual be penalized for not following an individual
responsibility plan?
261.14 What is the penalty if an individual refuses to engage in work?
261.15 Can a family be penalized if a parent refuses to work because he
or she cannot find child care?
261.16 Does the imposition of a penalty affect an individual's work
requirement?
Subpart B_What Are the Provisions Addressing State Accountability?
261.20 How will we hold a State accountable for achieving the work
objectives of TANF?
261.21 What overall work rate must a State meet?
261.22 How will we determine a State's overall work rate?
261.23 What two-parent work rate must a State meet?
261.24 How will we determine a State's two-parent work rate?
261.25 Does a State include Tribal families in calculating the work
participation rate?
Subpart C_What Are the Work Activities and How Do They Count?
261.30 What are the work activities?
261.31 How many hours must a work-eligible individual participate for
the family to count in the numerator of the overall rate?
261.32 How many hours must work-eligible individuals participate for the
family to count in the numerator of the two-parent rate?
261.33 What are the special requirements concerning educational
activities in determining monthly participation rates?
261.34 Are there any limitations in counting job search and job
readiness assistance toward the participation rates?
261.35 Are there any special work provisions for single custodial
parents?
[[Page 130]]
261.36 Do welfare reform waivers affect the calculation of a State's
participation rates?
Subpart D_How Will We Determine Caseload Reduction Credit for Minimum
Participation Rates?
261.40 Is there a way for a State to reduce the work participation
rates?
261.41 How will we determine the caseload reduction credit?
261.42 Which reductions count in determining the caseload reduction
credit?
261.43 What is the definition of a ``case receiving assistance'' in
calculating the caseload reduction credit?
261.44 When must a State report the required data on the caseload
reduction credit?
Subpart E_What Penalties Apply to States Related to Work Requirements?
261.50 What happens if a State fails to meet the participation rates?
261.51 Under what circumstances will we reduce the amount of the penalty
below the maximum?
261.52 Is there a way to waive the State's penalty for failing to
achieve either of the participation rates?
261.53 May a State correct the problem before incurring a penalty?
261.54 Is a State subject to any other penalty relating to its work
program?
261.55 Under what circumstances will we reduce the amount of the penalty
for not properly imposing penalties on individuals?
261.56 What happens if a parent cannot obtain needed child care?
261.57 What happens if a State sanctions a single parent of a child
under six who cannot get needed child care?
Subpart F_How Do We Ensure the Accuracy of Work Participation
Information?
261.60 What hours of participation may a State report for a work-
eligible individual?
261.61 How must a State document a work-eligible individual's hours of
participation?
261.62 What must a State do to verify the accuracy of its work
participation information?
261.63 When is the State's Work Verification Plan due?
261.64 How will we determine whether a State's work verification
procedures ensure an accurate work participation measurement?
261.65 Under what circumstances will we impose a work verification
penalty?
Subpart G_What Nondisplacement Rules Apply in TANF?
261.70 What safeguards are there to ensure that participants in work
activities do not displace other workers?
Subpart H_How Do Welfare Reform Waivers Affect State Penalties?
261.80 How do existing welfare reform waivers affect a State's penalty
liability under this part?
Authority: 42 U.S.C. 601, 602, 607, and 609; Pub. L. 109-171.
Source: 64 FR 17884, Apr. 12, 1999, unless otherwise noted.
Sec. 261.1 What does this part cover?
This part includes the regulatory provisions relating to the
mandatory work requirements of TANF and State work participation data
verification requirements.
[71 FR 37475, June 29, 2006]
Sec. 261.2 What definitions apply to this part?
(a) The general TANF definitions at Sec. Sec. 260.30 through 260.33
of this chapter apply to this part.
(b) Unsubsidized employment means full-or part-time employment in
the public or private sector that is not subsidized by TANF or any other
public program.
(c) Subsidized private sector employment means employment in the
private sector for which the employer receives a subsidy from TANF or
other public funds to offset some or all of the wages and costs of
employing an individual.
(d) Subsidized public sector employment means employment in the
public sector for which the employer receives a subsidy from TANF or
other public funds to offset some or all of the wages and costs of
employing an individual.
(e) Work experience (including work associated with the refurbishing
of publicly assisted housing) if sufficient private sector employment is
not available means a work activity, performed in return for welfare,
that provides an individual with an opportunity to acquire the general
skills, knowledge, and work habits necessary to obtain employment. The
purpose of work experience is to improve the employability of those who
cannot find unsubsidized
[[Page 131]]
full-time employment. This activity must be supervised by an employer,
work site sponsor, or other responsible party on an ongoing basis no
less frequently than once in each day in which the individual is
scheduled to participate.
(f) On-the-job training means training in the public or private
sector that is given to a paid employee while he or she is engaged in
productive work and that provides knowledge and skills essential to the
full and adequate performance of the job.
(g) Job search and job readiness assistance means the act of seeking
or obtaining employment, preparation to seek or obtain employment,
including life skills training, and substance abuse treatment, mental
health treatment, or rehabilitation activities. Such treatment or
therapy must be determined to be necessary and documented by a qualified
medical, substance abuse, or mental health professional. Job search and
job readiness assistance activities must be supervised by the TANF
agency or other responsible party on an ongoing basis no less frequently
than once each day in which the individual is scheduled to participate.
(h) Community service programs mean structured programs and embedded
activities in which individuals perform work for the direct benefit of
the community under the auspices of public or nonprofit organizations.
Community service programs must be limited to projects that serve a
useful community purpose in fields such as health, social service,
environmental protection, education, urban and rural redevelopment,
welfare, recreation, public facilities, public safety, and child care.
Community service programs are designed to improve the employability of
individuals not otherwise able to obtain unsubsidized full-time
employment, and must be supervised on an ongoing basis no less
frequently than once each day in which the individual is scheduled to
participate. A State agency shall take into account, to the extent
possible, the prior training, experience, and skills of a recipient in
making appropriate community service assignments.
(i) Vocational educational training (not to exceed 12 months with
respect to any individual) means organized educational programs that are
directly related to the preparation of individuals for employment in
current or emerging occupations. Vocational educational training must be
supervised on an ongoing basis no less frequently than once each day in
which the individual is scheduled to participate.
(j) Job skills training directly related to employment means
training or education for job skills required by an employer to provide
an individual with the ability to obtain employment or to advance or
adapt to the changing demands of the workplace. Job skills training
directly related to employment must be supervised on an ongoing basis no
less frequently than once each day in which the individual is scheduled
to participate.
(k) Education directly related to employment, in the case of a
recipient who has not received a high school diploma or a certificate of
high school equivalency means education related to a specific
occupation, job, or job offer. Education directly related to employment
must be supervised on an ongoing basis no less frequently than once each
day in which the work-eligible individual is scheduled to participate.
(l) Satisfactory attendance at secondary school or in a course of
study leading to a certificate of general equivalence, in the case of a
recipient who has not completed secondary school or received such a
certificate means regular attendance, in accordance with the
requirements of the secondary school or course of study, at a secondary
school or in a course of study leading to a certificate of general
equivalence, in the case of a work-eligible individual who has not
completed secondary school or received such a certificate. This activity
must be supervised on an ongoing basis no less frequently than once each
day in which the individual is scheduled to participate.
(m) Providing child care services to an individual who is
participating in a community service program means providing child care
to enable another TANF or SSP recipient to participate in a community
service program. This is an unpaid activity and must be a structured
[[Page 132]]
program designed to improve the employability of individuals who
participate in this activity. This activity must be supervised on an
ongoing basis no less frequently than once each day in which the
individual is scheduled to participate.
(n)(1) Work-eligible individual means an adult (or minor child head-
of-household) receiving assistance under TANF or a separate State
program or a non-recipient parent living with a child receiving such
assistance unless the parent is:
(i) A minor parent and not the head-of-household;
(ii) A non-citizen who is ineligible to receive assistance due to
his or her immigration status; or
(iii) At State option on a case-by-case basis, a recipient of
Supplemental Security Income (SSI) benefits or Aid to the Aged, Blind or
Disabled in the Territories.
(2) The term also excludes:
(i) A parent providing care for a disabled family member living in
the home, provided that there is medical documentation to support the
need for the parent to remain in the home to care for the disabled
family member;
(ii) At State option on a case-by-case basis, a parent who is a
recipient of Social Security Disability Insurance (SSDI) benefits; and
(iii) An individual in a family receiving MOE-funded assistance
under an approved Tribal TANF program, unless the State includes the
Tribal family in calculating work participation rates, as permitted
under Sec. 261.25.
[73 FR 6821, Feb. 5, 2008]
Subpart A_What Are the Provisions Addressing Individual Responsibility?
Sec. 261.10 What work requirements must an individual meet?
(a)(1) A parent or caretaker receiving assistance must engage in
work activities when the State has determined that the individual is
ready to engage in work or when he or she has received assistance for a
total of 24 months, whichever is earlier, consistent with section
407(e)(2) of the Act.
(2) The State must define what it means to engage in work for this
requirement; its definition may include participation in work activities
in accordance with section 407 of the Act.
(b) If a parent or caretaker has received assistance for two months,
he or she must participate in community service employment, consistent
with section 407(e)(2) of the Act, unless the State has exempted the
individual from work requirements or he or she is already engaged in
work activities as described at Sec. 261.30. The State will determine
the minimum hours per week and the tasks the individual must perform as
part of the community service employment.
Sec. 261.11 Which recipients must have an assessment under TANF?
(a) The State must make an initial assessment of the skills, prior
work experience, and employability of each recipient who is at least age
18 or who has not completed high school (or equivalent) and is not
attending secondary school.
(b) The State may make any required assessments within 30 days (90
days, at State option) of the date an individual becomes eligible for
assistance.
Sec. 261.12 What is an individual responsibility plan?
An individual responsibility plan is a plan developed at State
option, in consultation with the individual, on the basis of the
assessment made under Sec. 261.11. The plan:
(a) Should set an employment goal and a plan for moving immediately
into private-sector employment;
(b) Should describe the obligations of the individual. These could
include going to school, maintaining certain grades, keeping school-aged
children in school, immunizing children, going to classes, or doing
other things that will help the individual become or remain employed in
the private sector;
(c) Should be designed to move the individual into whatever private-
sector employment he or she is capable of handling as quickly as
possible and to increase over time the responsibility and the amount of
work the individual handles;
[[Page 133]]
(d) Should describe the services the State will provide the
individual to enable the individual to obtain and keep private sector
employment, including job counseling services; and
(e) May require the individual to undergo appropriate substance
abuse treatment.
Sec. 261.13 May an individual be penalized for not following an individual responsibility plan?
Yes. If an individual fails without good cause to comply with an
individual responsibility plan that he or she has signed, the State may
reduce the amount of assistance otherwise payable to the family, by
whatever amount it considers appropriate. This penalty is in addition to
any other penalties under the State's TANF program.
Sec. 261.14 What is the penalty if an individual refuses to engage in work?
(a) If an individual refuses to engage in work required under
section 407 of the Act, the State must reduce or terminate the amount of
assistance payable to the family, subject to any good cause or other
exceptions the State may establish. Such a reduction is governed by the
provisions of Sec. 261.16.
(b)(1) The State must, at a minimum, reduce the amount of assistance
otherwise payable to the family pro rata with respect to any period
during the month in which the individual refuses to work.
(2) The State may impose a greater reduction, including terminating
assistance.
(c) A State that fails to impose penalties on individuals in
accordance with the provisions of section 407(e) of the Act may be
subject to the State penalty specified at Sec. 261.54.
Sec. 261.15 Can a family be penalized if a parent refuses to work because he or she cannot find child care?
(a) No, the State may not reduce or terminate assistance based on an
individual's refusal to engage in required work if the individual is a
single custodial parent caring for a child under age six who has a
demonstrated inability to obtain needed child care, as specified at
Sec. 261.56.
(b) A State that fails to comply with the penalty exception at
section 407(e)(2) of the Act and the requirements at Sec. 261.56 may be
subject to the State penalty specified at Sec. 261.57.
Sec. 261.16 Does the imposition of a penalty affect an individual's work requirement?
A penalty imposed by a State against the family of an individual by
reason of the failure of the individual to comply with a requirement
under TANF shall not be construed to be a reduction in any wage paid to
the individual.
Subpart B_What Are the Provisions Addressing State Accountability?
Source: 73 FR 6822, Feb. 5, 2008, unless otherwise noted.
Sec. 261.20 How will we hold a State accountable for achieving the work objectives of TANF?
(a) Each State must meet two separate work participation rates in FY
2006 and thereafter, one--the two-parent rate based on how well it
succeeds in helping work-eligible individuals in two-parent families
find work activities described at Sec. 261.30, the other--the overall
rate based on how well it succeeds in finding those activities for work-
eligible individuals in all the families that it serves.
(b) Each State must submit data, as specified at Sec. 265.3 of this
chapter, that allows us to measure its success in requiring work-
eligible individuals to participate in work activities.
(c) If the data show that a State met both participation rates in a
fiscal year, then the percentage of historic State expenditures that it
must expend under TANF, pursuant to Sec. 263.1 of this chapter,
decreases from 80 percent to 75 percent for that fiscal year. This is
also known as the State's TANF ``maintenance-of-effort'' (MOE)
requirement.
(d) If the data show that a State did not meet a minimum work
participation rate for a fiscal year, a State could be subject to a
financial penalty.
(e) Before we impose a penalty, a State will have the opportunity to
claim reasonable cause or enter into a
[[Page 134]]
corrective compliance plan, pursuant to Sec. Sec. 262.5 and 262.6 of
this chapter.
Sec. 261.21 What overall work rate must a State meet?
Each State must achieve a 50 percent minimum overall participation
rate in FY 2006 and thereafter, minus any caseload reduction credit to
which it is entitled as provided in subpart D of this part.
Sec. 261.22 How will we determine a State's overall work rate?
(a)(1) The overall participation rate for a fiscal year is the
average of the State's overall participation rates for each month in the
fiscal year.
(2) The rate applies to families with a work-eligible individual.
(b) We determine a State's overall participation rate for a month as
follows:
(1) The number of TANF and SSP-MOE families that include a work-
eligible individual who meets the requirements set forth in Sec. 261.31
for the month (i.e., the numerator), divided by,
(2) The number of TANF and SSP-MOE families that include a work-
eligible individual, minus the number of such families that are subject
to a penalty for refusing to work in that month (i.e., the denominator).
However, if a family with a work-eligible individual has been penalized
for refusal to participate in work activities for more than three of the
last 12 months, we will not exclude it from the participation rate
calculation.
(3) At State option, we will include in the participation rate
calculation families with a work-eligible individual that have been
penalized for refusing to work no more than three of the last 12 months.
(c)(1) A State has the option of not requiring a single custodial
parent caring for a child under age one to engage in work.
(2) At State option, we will disregard a family with such a parent
from the participation rate calculation for a maximum of 12 months.
(d)(1) If a family receives assistance for only part of a month, we
will count it as a month of participation if a work-eligible individual
is engaged in work for the minimum average number of hours in each full
week that the family receives assistance in that month.
(2) If a State pays benefits retroactively (i.e., for the period
between application and approval of benefits), it has the option to
consider the family to be receiving assistance during the period of
retroactivity.
Sec. 261.23 What two-parent work rate must a State meet?
Each State must achieve a 90 percent minimum two-parent
participation rate in FY 2006 and thereafter, minus any caseload
reduction credit to which it is entitled as provided in subpart D of
this part.
Sec. 261.24 How will we determine a State's two-parent work rate?
(a)(1) The two-parent participation rate for a fiscal year is the
average of the State's two-parent participation rates for each month in
the fiscal year.
(2) The rate applies to two-parent families with two work-eligible
individuals. However, if one of the parents is a work-eligible
individual with a disability, we will not consider the family to be a
two-parent family; i.e., we will not include such a family in either the
numerator or denominator of the two-parent rate.
(b) We determine a State's two-parent participation rate for the
month as follows:
(1) The number of two-parent TANF and SSP-MOE families in which both
parents are work-eligible individuals and together they meet the
requirements set forth in Sec. 261.32 for the month (i.e., the
numerator), divided by,
(2) The number of two-parent TANF and SSP-MOE families in which both
parents are work-eligible individuals during the month, minus the number
of such two-parent families that are subject to a penalty for refusing
to work in that month (the denominator). However, if a family with a
work-eligible individual has been penalized for more than three months
of the last 12 months, we will not exclude it from the participation
rate calculation.
(3) At State option, we will include in the participation rate
calculation families with a work-eligible individual that have been
penalized for refusing to
[[Page 135]]
work no more than three of the last 12 months.
(c) For purposes of the calculation in paragraph (b) of this
section, a two-parent family includes, at a minimum, all families with
two natural or adoptive parents (of the same minor child) who are work-
eligible individuals and living in the home, unless both are minors and
neither is a head-of-household.
(d)(1) If the family receives assistance for only part of a month,
we will count it as a month of participation if a work-eligible
individual in the family (or both work-eligible individuals, if they are
both required to work) is engaged in work for the minimum average number
of hours in each full week that the family receives assistance in that
month.
(2) If a State pays benefits retroactively (i.e., for the period
between application and approval of benefits), it has the option to
consider the family to be receiving assistance during the period of
retroactivity.
Sec. 261.25 Do we count Tribal families in calculating the work participation rate?
At State option, we will include families with a work-eligible
individual that are receiving assistance under an approved Tribal family
assistance plan or under a Tribal work program in calculating the
State's participation rates under Sec. Sec. 261.22 and 261.24.
Subpart C_What Are the Work Activities and How Do They Count?
Sec. 261.30 What are the work activities?
The work activities are:
(a) Unsubsidized employment;
(b) Subsidized private-sector employment;
(c) Subsidized public-sector employment;
(d) Work experience if sufficient private-sector employment is not
available;
(e) On-the-job training (OJT);
(f) Job search and job readiness assistance;
(g) Community service programs;
(h) Vocational educational training;
(i) Job skills training directly related to employment;
(j) Education directly related to employment, in the case of a
recipient who has not received a high school diploma or a certificate of
high school equivalency;
(k) Satisfactory attendance at secondary school or in a course of
study leading to a certificate of general equivalence, if a recipient
has not completed secondary school or received such a certificate; and
(l) Providing child care services to an individual who is
participating in a community service program.
Sec. 261.31 How many hours must a work-eligible individual participate for the family to count in the numerator of the overall rate?
(a) Subject to paragraph (d) of this section, a family with a work-
eligible individual counts as engaged in work for a month for the
overall rate if:
(1) He or she participates in work activities during the month for
at least a minimum average of 30 hours per week; and
(2) At least 20 of the above hours per week come from participation
in the activities listed in paragraph (b) of this section.
(b) The following nine activities count toward the first 20 hours of
participation: unsubsidized employment; subsidized private-sector
employment; subsidized public-sector employment; work experience; on-
the-job training; job search and job readiness assistance; community
service programs; vocational educational training; and providing child
care services to an individual who is participating in a community
service program.
(c) Above 20 hours per week, the following three activities may also
count as participation: job skills training directly related to
employment; education directly related to employment; and satisfactory
attendance at secondary school or in a course of study leading to a
certificate of general equivalence.
(d)(1) We will deem a work-eligible individual who participates in a
work experience or community service program for the maximum number of
[[Page 136]]
hours per month that a State may require by dividing the combined
monthly TANF or SSP-MOE grant and food stamp allotment by the higher of
the Federal or State minimum wage to have participated for an average of
20 hours per week for the month in that activity.
(2) This policy is limited to States that have adopted a Simplified
Food Stamp Program option that permits a State to count the value of
food stamps in determining the maximum core hours of participation
permitted by the FLSA.
(3) In order for Puerto Rico, which does not have a traditional Food
Stamp Program, to deem core hours, it must include the value of food
assistance benefits provided through the Nutrition Assistance Program in
the same manner as a State must include food stamp benefits under
subsection (d)(1).
[73 FR 6823, Feb. 5, 2008]
Sec. 261.32 How many hours must work-eligible individuals participate for the family to count in the numerator of the two-parent rate?
(a) Subject to paragraph (d) of this section, a family with two
work-eligible parents counts as engaged in work for the month for the
two-parent rate if:
(1) Work-eligible parents in the family are participating in work
activities for a combined average of at least 35 hours per week during
the month, and
(2) At least 30 of the 35 hours per week come from participation in
the activities listed in paragraph (b) of this section.
(b) The following nine activities count for the first 30 hours of
participation: unsubsidized employment; subsidized private-sector
employment; subsidized public-sector employment; work experience; on-
the-job training; job search and job readiness assistance; community
service programs; vocational educational training; and providing child
care services to an individual who is participating in a community
service program.
(c) Above 30 hours per week, the following three activities may also
count for participation: job skills training directly related to
employment; education directly related to employment; and satisfactory
attendance at secondary school or in a course of study leading to a
certificate of general equivalence.
(d)(1) We will deem a family with two work-eligible parents in which
one or both participates in a work experience or community service
program for the maximum number of hours per month that a State may
require by dividing the combined monthly TANF or SSP-MOE grant and food
stamp allotment by the higher of the Federal or State minimum wage to
have participated for an average of 30 hours per week for the month in
that activity.
(2) This policy is limited to States that have adopted a Simplified
Food Stamp Program option that permits a State to count the value of
food stamps in determining the maximum core hours of participation
permitted by the FLSA.
(3) In order for Puerto Rico, which does not have a traditional Food
Stamp Program, to deem core hours, it must include the value of food
assistance benefits provided through the Nutrition Assistance Program in
the same manner as a State must include food stamp benefits under
paragraph (d)(1) of this section.
(e)(1) Subject to paragraph (f) of this section, if the family
receives federally funded child care assistance and an adult in the
family does not have a disability or is not caring for a child with a
disability, then the work-eligible individuals must be participating in
work activities for an average of at least 55 hours per week to count as
a two-parent family engaged in work for the month.
(2) At least 50 of the 55 hours per week must come from
participation in the activities listed in paragraph (b) of this section.
(3) Above 50 hours per week, the three activities listed in
paragraph (c) of this section may also count as participation.
(f)(1) We will deem a family with two work-eligible parents in which
one or both participates in a work experience or community service
program for the maximum number of hours per month that a State may
require by dividing the combined monthly TANF or SSP-MOE grant and food
stamp allotment
[[Page 137]]
by the higher of the Federal or State minimum wage to have participated
for an average of 50 hours per week for the month in that activity.
(2) This policy is limited to States that have adopted a Simplified
Food Stamp Program option that permits a State to count the value of
food stamps in determining the maximum core hours of participation
permitted by the FLSA.
(3) In order for Puerto Rico, which does not have a traditional Food
Stamp Program, to deem core hours, it must include the value of food
assistance benefits provided through the Nutrition Assistance Program in
the same manner as a State must include food stamp benefits under
paragraph (d)(1) of this section.
[73 FR 6823, Feb. 5, 2008]
Sec. 261.33 What are the special requirements concerning educational activities in determining monthly participation rates?
(a) Vocational educational training may only count for a total of 12
months for any individual.
(b)(1) A recipient who is married or a single head-of-household
under 20 years old counts as engaged in work in a month if he or she:
(i) Maintains satisfactory attendance at a secondary school or the
equivalent during the month; or
(ii) Participates in education directly related to employment for an
average of at least 20 hours per week during the month.
(2)(i) For a married recipient, such participation counts as the
greater of 20 hours or the actual hours of participation.
(ii) If both parents in the family are under 20 years old, the
requirements at Sec. 261.32(d) are met if both meet the conditions of
paragraphs (b)(1)(i) or (b)(1)(ii) of this section.
(c) In counting individuals for each participation rate, not more
than 30 percent of individuals engaged in work in a month may be
included in the numerator because they are:
(1) Participating in vocational educational training; and
(2) In fiscal year 2000 or thereafter, individuals deemed to be
engaged in work by participating in educational activities described in
paragraph (b) of this section.
Sec. 261.34 Are there any limitations in counting job search and job readiness assistance toward the participation rates?
Yes. There are four limitations concerning job search and job
readiness assistance.
(a) Except as provided in paragraph (b) of this section, an
individual's participation in job search and job readiness assistance
counts for a maximum of six weeks in the preceding 12-month period.
(b) If the State's total unemployment rate is at least 50 percent
greater than the United States' total unemployment rate or if the State
meets the definition of a ``needy State'', specified at Sec. 260.30 of
this chapter, then an individual's participation in job search and job
readiness assistance counts for a maximum of 12 weeks in that 12-month
period.
(c) For purposes of paragraphs (a) and (b) of this section, a week
equals 20 hours for a work-eligible individual who is a single custodial
parent with a child under six years of age and equals 30 hours for all
other work-eligible individuals.
(d) An individual's participation in job search and job readiness
assistance does not count for a week that immediately follows four
consecutive weeks in which the State reports any hours of such
participation in the preceding 12-month period. For purposes of this
paragraph a week means seven consecutive days.
(e) Not more than once for any individual in the preceding 12-month
period, a State may count three or four days of job search and job
readiness assistance during a week as a full week of participation. We
calculate a full week of participation based on the average daily hours
of participation for three or four days and will prorate participation
at that level for the remaining one or two days to determine the total
hours for a five-day week. Any prorated hours of participation must be
included in the calculation of total hours permitted under the
limitation in this section.
[73 FR 6824, Feb. 5, 2008]
[[Page 138]]
Sec. 261.35 Are there any special work provisions for single custodial parents?
Yes. A single custodial parent or caretaker relative with a child
under age six will count as engaged in work if he or she participates
for at least an average of 20 hours per week.
Sec. 261.36 Do welfare reform waivers affect the calculation of a State's participation rates?
A welfare reform waiver could affect the calculation of a State's
participation rate, pursuant to subpart C of part 260 and section 415 of
the Act.
Subpart D_How Will We Determine Caseload Reduction Credit for Minimum
Participation Rates?
Source: 73 FR 6824, Feb. 5, 2008, unless otherwise noted.
Sec. 261.40 Is there a way for a State to reduce the work participation rates?
(a)(1) If the average monthly number of cases receiving assistance,
including assistance under a separate State program (as provided at
Sec. 261.42(b)), in a State in the preceding fiscal year was lower than
the average monthly number of cases that received assistance, including
assistance under a separate State program in that State in FY 2005, the
minimum overall participation rate the State must meet for the fiscal
year (as provided at Sec. 261.21) decreases by the number of percentage
points the prior-year caseload fell in comparison to the FY 2005
caseload.
(2) The minimum two-parent participation rate the State must meet
for the fiscal year (as provided at Sec. 261.23) decreases, at State
option, by either:
(i) The number of percentage points the prior-year two-parent
caseload, including two-parent cases receiving assistance under a
separate State program (as provided at Sec. 261.42(b)), fell in
comparison to the FY 2005 two-parent caseload, including two-parent
cases receiving assistance under a separate State program; or
(ii) The number of percentage points the prior-year overall
caseload, including assistance under a separate State program (as
provided at Sec. 261.42(b)), fell in comparison to the FY 2005 overall
caseload, including cases receiving assistance under a separate State
program.
(3) For the credit calculation, we will refer to the fiscal year
that precedes the fiscal year to which the credit applies as the
``comparison year.''
(b)(1) The calculations in paragraph (a) of this section must
disregard caseload reductions due to requirements of Federal law and to
changes that a State has made in its eligibility criteria in comparison
to its criteria in effect in FY 2005.
(2) At State option, the calculation may offset the disregard of
caseload reductions in paragraph (b)(1) of this section by changes in
eligibility criteria that increase caseloads.
(c)(1) To establish the caseload base for FY 2005 and to determine
the comparison-year caseload, we will use the combined TANF and Separate
State Program caseload figures reported on the Form ACF-199, TANF Data
Report, and Form ACF-209, SSP-MOE Data Report, respectively.
(2) To qualify for a caseload reduction, a State must have reported
monthly caseload information, including cases in separate State
programs, for FY 2005 and the comparison year for cases receiving
assistance as defined at Sec. 261.43.
(d)(1) A State may correct erroneous data or submit accurate data to
adjust program data or to include unduplicated cases within the fiscal
year.
(2) We will adjust both the FY 2005 baseline and the comparison-year
caseload information, as appropriate, based on these State submissions.
(e) We refer to the number of percentage points by which a caseload
falls, disregarding the cases described in paragraph (b) of this
section, as a caseload reduction credit.
Sec. 261.41 How will we determine the caseload reduction credit?
(a)(1) We will determine the overall and two-parent caseload
reduction credits that apply to each State based on the information and
estimates reported to us by the State on eligibility
[[Page 139]]
policy changes using application denials, case closures, or other
administrative data sources and analyses.
(2) We will accept the information and estimates provided by a
State, unless they are implausible based on the criteria listed in
paragraph (d) of this section.
(3) We may conduct on-site reviews and inspect administrative
records on applications, case closures, or other administrative data
sources to validate the accuracy of the State estimates.
(b) In order to receive a caseload reduction credit, a State must
submit a Caseload Reduction Report to us containing the following
information:
(1) A listing of, and implementation dates for, all State and
Federal eligibility changes, as defined at Sec. 261.42, made by the
State since the beginning of FY 2006;
(2) A numerical estimate of the positive or negative average monthly
impact on the comparison-year caseload of each eligibility change
(based, as appropriate, on application denials, case closures or other
analyses);
(3) An overall estimate of the total net positive or negative impact
on the applicable caseload as a result of all such eligibility changes;
(4) An estimate of the State's caseload reduction credit;
(5) A description of the methodology and the supporting data that a
State used to calculate its caseload reduction estimates; and
(6) A certification that it has provided the public an appropriate
opportunity to comment on the estimates and methodology, considered
their comments, and incorporated all net reductions resulting from
Federal and State eligibility changes.
(c)(1) A State requesting a caseload reduction credit for the
overall participation rate must base its estimates of the impact of
eligibility changes on decreases in its comparison-year overall caseload
compared to the FY 2005 overall caseload baseline established in
accordance with Sec. 261.40(d).
(2) A State requesting a caseload reduction credit for its two-
parent rate must base its estimates of the impact of eligibility changes
on decreases in either:
(i) Its two-parent caseload compared to the FY 2005 base-year two-
parent caseload baseline established in accordance with Sec. 261.40(d);
or
(ii) Its overall caseload compared to the FY 2005 base-year overall
caseload baseline established in accordance with Sec. 261.40(d).
(d)(1) For each State, we will assess the adequacy of information
and estimates using the following criteria: Its methodology; Its
estimates of impact compared to other States; the quality of its data;
and the completeness and adequacy of its documentation.
(2) If we request additional information to develop or validate
estimates, the State may negotiate an appropriate deadline or provide
the information within 30 days of the date of our request.
(3) The State must provide sufficient data to document the
information submitted under paragraph (b) of this section.
(e) We will not calculate a caseload reduction credit unless the
State reports case-record data on individuals and families served by any
separate State program, as required under Sec. 265.3(d) of this
chapter.
(f) A State may only apply to the participation rate a caseload
reduction credit that we have calculated. If a State disagrees with the
caseload reduction credit, it may appeal the decision as an adverse
action in accordance with Sec. 262.7 of this chapter.
Sec. 261.42 Which reductions count in determining the caseload reduction credit?
(a)(1) A State's caseload reduction credit must not include caseload
decreases due to Federal requirements or State changes in eligibility
rules since FY 2005 that directly affect a family's eligibility for
assistance. These include, but are not limited to, more stringent income
and resource limitations, time limits, full family sanctions, and other
new requirements that deny families assistance when an individual does
not comply with work requirements, cooperate with child support, or
fulfill other behavioral requirements.
[[Page 140]]
(2) At State option, a State's caseload reduction credit may include
caseload increases due to Federal requirements or State changes in
eligibility rules since FY 2005 if used to offset caseload decreases in
paragraph (a)(1) of this section.
(3) A State may not receive a caseload reduction credit that exceeds
the actual caseload decline between FY 2005 and the comparison year.
(4) A State may count the reductions attributable to enforcement
mechanisms or procedural requirements that are used to enforce existing
eligibility criteria (e.g., fingerprinting or other verification
techniques) to the extent that such mechanisms or requirements identify
or deter families otherwise ineligible under existing rules.
(b) A State must include cases receiving assistance in separate
State programs as part of its FY 2005 caseload and comparison-year
caseload. However, if a State provides documentation that separate State
program cases overlap with or duplicate cases in the TANF caseload, we
will exclude them from the caseload count.
Sec. 261.43 What is the definition of a ``case receiving assistance'' in calculating the caseload reduction credit?
(a) The caseload reduction credit is based on decreases in caseloads
receiving TANF- or SSP-MOE-funded assistance (other than those excluded
pursuant to Sec. 261.42).
(b)(1) A State that is investing State MOE funds in excess of the
required 80 percent or 75 percent basic MOE amount need only include the
pro rata share of caseloads receiving assistance that is required to
meet basic MOE requirements.
(2) For purposes of paragraph (b)(1) of this section, a State may
exclude from the overall caseload reduction credit calculation the
number of cases funded with excess MOE. This number is calculated by
dividing annual excess MOE expenditures on assistance by the average
monthly expenditures on assistance per case for the fiscal year,
(i) Where annual excess MOE expenditures on assistance equal total
annual MOE expenditures minus the percentage of historic State
expenditures specified in paragraph (v) of this section, multiplied by
the percentage that annual expenditures on assistance (both Federal and
State) represent of all annual expenditures, and
(ii) Where the average monthly assistance expenditures per case for
the fiscal year equal the sum of annual TANF and SSP-MOE assistance
expenditures (both Federal and State) divided by the average monthly sum
of TANF and SSP-MOE caseloads for the fiscal year.
(iii) If the excess MOE calculation is for a separate two-parent
caseload reduction credit, we multiply the number of cases funded with
excess MOE by the average monthly percentage of two-parent cases in the
State's total (TANF plus SSP-MOE) average monthly caseload.
(iv) All financial data must agree with data reported on the TANF
Financial Report (form ACF-196) and all caseload data must agree with
data reported on the TANF Data and SSP-MOE Data Reports (forms ACF-199
and ACF-209).
(v) The State must use 80 percent of historic expenditures when
calculating excess MOE; however if it has met the work participation
requirements for the year, it may use 75 percent of historic
expenditures.
Sec. 261.44 When must a State report the required data on the caseload reduction credit?
A State must report the necessary documentation on caseload
reductions for the preceding fiscal year by December 31.
Subpart E_What Penalties Apply to States Related to Work Requirements?
Sec. 261.50 What happens if a State fails to meet the participation rates?
(a) If we determine that a State did not achieve one of the required
minimum work participation rates, we must reduce the SFAG payable to the
State.
(b)(1) If there was no penalty for the preceding fiscal year, the
base penalty for the current fiscal year is five percent of the adjusted
SFAG.
[[Page 141]]
(2) For each consecutive year that the State is subject to a penalty
under this part, we will increase the amount of the base penalty by two
percentage points over the previous year's penalty. However, the penalty
can never exceed 21 percent of the State's adjusted SFAG.
(c) We impose a penalty by reducing the SFAG payable for the fiscal
year that immediately follows our final determination that a State is
subject to a penalty and our final determination of the penalty amount.
(d) In accordance with the procedures specified at Sec. 262.4 of
this chapter, a State may dispute our determination that it is subject
to a penalty.
Sec. 261.51 Under what circumstances will we reduce the amount of the penalty below the maximum?
(a) We will reduce the amount of the penalty based on the degree of
the State's noncompliance.
(1) If the State fails only the two-parent participation rate
specified at Sec. 261.23, reduced by any applicable caseload reduction
credit, its maximum penalty will be a percentage of the penalty
specified at Sec. 261.50. This percentage will equal the percentage of
two-parent cases in the State's total caseload.
(2) If the State fails the overall participation rate specified at
Sec. 261.21, reduced by any applicable caseload reduction credit, or
both rates, its maximum penalty will be the penalty specified at Sec.
261.50.
(b)(1) In order to receive a reduction of the penalty amounts
determined under paragraphs (a)(1) or (a)(2) of this section:
(i) The State must achieve participation rates equal to a threshold
level defined as 50 percent of the applicable minimum participation rate
at Sec. 261.21 or Sec. 261.23, minus any caseload reduction credit
determined pursuant to subpart D of this part; and
(ii) The adjustment factor for changes in the number of individuals
engaged in work, described in paragraph (b)(4) of this section, must be
greater than zero.
(2) If the State meets the requirements of paragraph (b)(1) of this
section, we will base its reduction on the severity of the failure. For
this purpose, we will calculate the severity of the State's failure
based on:
(i) The degree to which it missed the target rate;
(ii) An adjustment factor that accounts for changes in the number of
individuals who are engaged in work in the State since the prior year;
and
(iii) The number of consecutive years in which the State failed to
meet the participation rates and the number of rates missed.
(3) We will determine the degree to which the State missed the
target rate using the ratio of the following two factors:
(i) The difference between the participation rate achieved by the
State and the 50-percent threshold level (adjusted for any caseload
reduction credit determined pursuant to subpart D of this part); and
(ii) The difference between the minimum applicable participation
rate and the threshold level (both adjusted for any caseload reduction
credit determined pursuant to subpart D of this part).
(4) We will calculate the adjustment factor for changes in the
number of individuals engaged in work using the following formula:
(i) The average monthly number of individuals engaged in work in the
penalty year minus the average monthly number of individuals engaged in
work in the prior year, divided by,
(ii) The product of 0.15 and the average monthly number of
individuals engaged in work in the prior year.
(5) Subject to paragraph (c) of this section, if the State fails
only the two-parent participation rate specified at Sec. 261.23, and
qualifies for a penalty reduction under paragraph (b)(1) of this
section, its penalty reduction will be the product of:
(i) The amount determined in paragraph (a)(1) of this section;
(ii) The ratio described in paragraph (b)(3) of this section
computed with respect to two-parent families; and
(iii) The adjustment factor described in paragraph (b)(4) of this
section computed with respect to two-parent families.
(6) Subject to paragraph (c) of this section, if the State fails the
overall
[[Page 142]]
participation rate specified at Sec. 261.21, or both rates, and
qualifies for a penalty reduction under paragraph (b)(1) of this
section, its penalty reduction will be the product of:
(i) The amount determined in paragraph (a)(2) of this section;
(ii) The ratio described in paragraph (b)(3) of this section
computed with respect to all families; and
(iii) The adjustment factor described in paragraph (b)(4) of this
section.
(7) Pursuant to Sec. 260.58 of this chapter, we will adjust the
calculations in this section to exclude cases for which a State has
granted federally recognized good cause domestic violence waivers.
(c)(1) If the State was not subject to a penalty the prior year, the
State will receive:
(i) The full applicable penalty reduction described in paragraph
(b)(5) or (b)(6) of this section if it failed only one participation
rate; or
(ii) 50 percent of the penalty reduction described in paragraph
(b)(6) of this section if it failed both participation rates.
(2) If the penalty year is the second successive year in which the
State is subject to a penalty, the State will receive:
(i) 50 percent of the applicable penalty reduction described in
paragraph (b)(5) or (b)(6) of this section if it failed only one
participation rate; or
(ii) 25 percent of the penalty reduction described in paragraph
(b)(6) of this section if it failed both participation rates.
(3) If the penalty year is the third or greater successive year in
which the State is subject to a penalty, the State will not receive a
penalty reduction described in paragraph (b)(5) or (b)(6) of this
section.
(d)(1) We may reduce the penalty if the State failed to achieve a
participation rate because:
(i) It meets the definition of a needy State, specified at Sec.
260.30 of this chapter; or,
(ii) Noncompliance is due to extraordinary circumstances such as a
natural disaster, regional recession, or substantial caseload increase.
(2) In determining noncompliance under paragraph (d)(1)(ii) of this
section, we will consider such objective evidence of extraordinary
circumstances as the State chooses to submit.
Sec. 261.52 Is there a way to waive the State's penalty for failing to achieve either of the participation rates?
(a) We will not impose a penalty under this part if we determine
that the State has reasonable cause for its failure.
(b) In addition to the general reasonable cause criteria specified
at Sec. 262.5 of this chapter, a State may also submit a request for a
reasonable cause exemption from the requirement to meet the minimum
participation rate in two specific case situations.
(1) We will determine that a State has reasonable cause if it
demonstrates that failure to meet the work participation rates is
attributable to its provision of federally recognized good cause
domestic violence waivers (i.e., it provides evidence that it achieved
the applicable work rates when individuals receiving federally
recognized good cause domestic violence waivers of work requirements, in
accordance with the provisions at Sec. Sec. 260.54(b) and 260.55 of
this chapter, are removed from the calculations in Sec. Sec. 261.22(b)
and 261.24(b)).
(2) We will determine that a State has reasonable cause if it
demonstrates that its failure to meet the work participation rates is
attributable to its provision of assistance to refugees in federally
approved alternative projects under section 412(e)(7) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)(7)).
(c) In accordance with the procedures specified at Sec. 262.4 of
this chapter, a State may dispute our determination that it is subject
to a penalty.
Sec. 261.53 May a State correct the problem before incurring a penalty?
(a) Yes. A State may enter into a corrective compliance plan to
remedy a problem that caused its failure to meet a participation rate,
as specified at Sec. 262.6 of this chapter.
(b) To qualify for a penalty reduction under Sec. 262.6(j)(1) of
this chapter, based
[[Page 143]]
on significant progress towards correcting a violation, a State must
reduce the difference between the participation rate it achieved in the
year for which it is subject to a penalty and the rate applicable during
the penalty year (adjusted for any caseload reduction credit determined
pursuant to subpart D of this part) by at least 50 percent.
Sec. 261.54 Is a State subject to any other penalty relating to its work program?
(a) If we determine that, during a fiscal year, a State has violated
section 407(e) of the Act, relating to imposing penalties against
individuals, we must reduce the SFAG payable to the State.
(b) The penalty amount for a fiscal year will equal between one and
five percent of the adjusted SFAG.
(c) We impose a penalty by reducing the SFAG payable for the fiscal
year that immediately follows our final determination that a State is
subject to a penalty and our final determination of the penalty amount.
Sec. 261.55 Under what circumstances will we reduce the amount of the penalty for not properly imposing penalties on individuals?
(a) We will reduce the amount of the penalty based on the degree of
the State's noncompliance.
(b) In determining the size of any reduction, we will consider
objective evidence of:
(1) Whether the State has established a control mechanism to ensure
that the grants of individuals are appropriately reduced for refusing to
engage in required work; and
(2) The percentage of cases for which the grants have not been
appropriately reduced.
Sec. 261.56 What happens if a parent cannot obtain needed child care?
(a)(1) If the individual is a single custodial parent caring for a
child under age six, the State may not reduce or terminate assistance
based on the parent's refusal to engage in required work if he or she
demonstrates an inability to obtain needed child care for one or more of
the following reasons:
(i) Appropriate child care within a reasonable distance from the
home or work site is unavailable;
(ii) Informal child care by a relative or under other arrangements
is unavailable or unsuitable; or
(iii) Appropriate and affordable formal child care arrangements are
unavailable.
(2) Refusal to work when an acceptable form of child care is
available is not protected from sanctioning.
(b)(1) The State will determine when the individual has demonstrated
that he or she cannot find child care, in accordance with criteria
established by the State.
(2) These criteria must:
(i) Address the procedures that the State uses to determine if the
parent has a demonstrated inability to obtain needed child care;
(ii) Include definitions of the terms ``appropriate child care,''
``reasonable distance,'' ``unsuitability of informal care,'' and
``affordable child care arrangements''; and
(iii) Be submitted to us.
(c) The TANF agency must inform parents about:
(1) The penalty exception to the TANF work requirement, including
the criteria and applicable definitions for determining whether an
individual has demonstrated an inability to obtain needed child care;
(2) The State's process or procedures (including definitions) for
determining a family's inability to obtain needed child care, and any
other requirements or procedures, such as fair hearings, associated with
this provision; and
(3) The fact that the exception does not extend the time limit for
receiving Federal assistance.
[64 FR 17884, Apr. 12, 1999; 64 FR 40291, July 26, 1999]
Sec. 261.57 What happens if a State sanctions a single parent of a child under six who cannot get needed child care?
(a) If we determine that a State has not complied with the
requirements of Sec. 261.56, we will reduce the SFAG payable to the
State by no more than five percent for the immediately succeeding fiscal
year unless the State demonstrates to our satisfaction that it
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had reasonable cause or it achieves compliance under a corrective
compliance plan pursuant to Sec. Sec. 262.5 and 262.6 of this chapter.
(b) We will impose the maximum penalty if:
(1) The State does not have a statewide process in place to inform
parents about the exception to the work requirement and enable them to
demonstrate that they have been unable to obtain child care; or
(2) There is a pattern of substantiated complaints from parents or
organizations verifying that a State has reduced or terminated
assistance in violation of this requirement.
(c) We may impose a reduced penalty if the State demonstrates that
the violations were isolated or that they affected a minimal number of
families.
Subpart F_How Do We Ensure the Accuracy of Work Participation
Information?
Source: 73 FR 6826, Feb. 5, 2008, unless otherwise noted.